Charles Carreon: Popehat.com, by Kenneth Paul White

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The Oatmeal v. FunnyJunk, Part X: Philanthropy > Douchebaggery
Jul 9, 2012
By Ken White.
Law

[All of our coverage of Charles Carreon's transformation from an obscure attorney to a figure of internet-wide ridicule is collected under this tag.]

It's time for some updates, boys and girls. I'm at an undisclosed location vacationing with the family, so I will by necessity be brief.

Money Talks. In This Case It Says "F.U.": Matt Inman has, as promised, posted pictures of the money he raised for charity. The pictures are beautiful. The triumph of good over evil usually is.

Forget It, He's Rolling: Charles Carreon, having dismissed his suit against Matt Inman, IndieGoGo, and two national charities, has now declared victory. Carreon apparently believes he prevailed because Judge Chen asked Mr. Inman to submit proof that he had written checks to the two charities. But Judge Chen did so in the context of requesting the basis he needed to deny Carreon's application for a temporary restraining order as moot. This is roughly like crowing that you dominated the captain of the firing squad by making him offer you a blindfold and a cigarette before shooting you.

Or perhaps Carreon believes he achieved victory because the cash Mr. Inman photographed was technically his own funds, not the funds he raised and forwarded to worthy charities. If this is what Mr. Carreon needs to live with himself, I say we let him cherish it. Oh, very well done, Mr. Carreon.

The Law Should Be What I Say It Is: Stinging from his recent infamy, Mr. Carreon has started a website called Rapeutation. Because being ridiculed based on your bad behavior is equivalent to sexual assault, you know.

The purpose of Rapeutation — aside from scrawled-on-the-asylum-wall poetry and disturbing videos — is to advocate for a new, rather ill-defined cause of action to address something called "Distributed Internet Reputation Attack":

Distributed Internet Reputation Attack (DIRA): noun, an attack against the reputation of an individual that harnesses the distributed efforts of large numbers of both human and digital Internet zombies to proliferate unmanageable quantities of disparaging information in an effort to alter the conduct of the individual or entity.

The use of the word "zombies" is always a signifier of serious and credible legal analysis.

[T]he frequency of DIRAs makes it apparent that old laws concerning defamation need reforming to take account of the pernicious effects of allowing Internet mobs to run riot, placing meaningful limits on what is fair play in the realm of social media. Suggestions will be made for ways to deal with the problem that will protect publishers from being required to play censor, including the creation of a new DIRA tort.

Even in lashing out, Carreon is unoriginal. Entire-internet-suer Joseph Rakofsky already offered the ass-damp tort of "internet mobbing," which in his case meant multiple bloggers criticizing him for making his very first trial an attempt to defend a man accused of murder. Rakofsky's fawners — the sort who figure that being an underdog is automatically a sign of having a defensible argument — have rushed to promote (in notably ambiguous terms) this supposed tort. And now comes Charlie the Censor.

But I must ask — why is a new tort necessary?

If anyone has uttered false statements of fact about Mr. Carreon, the law provides a remedy through the tort of defamation. That's still true in the internet age – it doesn't matter if the false utterance is made by blog, twitter, or cartoon on Facebook. What change could Mr. Carreon be suggesting?

Unless . . . Mr. Carreon, through the Trojan horse "fair play," is suggesting a major revision of fundamental First Amendment concepts solely to protect his own wounded pride and the feelings of his ilk. Will Mr. Carreon seek to change the familiar, crucial, and exquisitely American concepts that satire and parody are protected speech? Will he seek to erode the rule that statements of opinion cannot be defamatory if they do not imply false statements of fact? Will he seek to overturn the decades of precedent that speech does not fall outside the aegis of the First Amendment simply because it hurts somebody's feelings? Will he offer some insipid and unprincipled volume-based exception to the First Amendment, under which one or two people may criticize him, but ten thousand may not? Is Mr. Carreon foolish enough to imagine for a moment that such exceptions to free speech principles would not be abused — or is he too enraged to care?

People I respect — people I trust — say that Mr. Carreon was in the past a decent man who defended free speech. For such a man to stoop to undermine one of his own principles, and one of the most important principles of American society, is nothing short of tragic.

[admin]

Innocently, And With No Intent To Cause Any Mischief Whatsoever
Jul 26, 2012
By Ken White.
Fun

[admin]

The Oatmeal v. Funnyjunk, Part XI: What Remains
Sep 10, 2012
By Ken White.
Effluvia

[All of our coverage of Charles Carreon's journey from relative obscurity to fading infamy is collected under this tag.]

It's been a while since we visited the strange world of Charles Carreon's claims against Matthew Inman and The Oatmeal, hasn't it?

There's been nothing new on the direct confrontation between Charlie the Censor and Inman since Charlie slunk away braying that he had prevailed. Inman has done his level best to troll Carreon by raising more than $1.1 million for a Nikola Tesla Science Center, but Carreon has not risen to the bait. There hasn't even been so much as an effort to tie Tesla to the Freemasons or Rosicrucians or something.

If the Carreon/Inman battle has ended, Charlie the Censor's battles with his detractors have not. You may recall that in Chapter Seven I described how the author of the satirical blog Censoriousdouchebag, aided by Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis, took the initiative by filing a declaratory relief action against Carreon. This allowed the blogger to preempt Carreon's contemptible and censorious threats against him by asking a federal judge to rule upon the threats without Carreon himself filing suit.

The suit proceeds — more about that later — but the most notable action has been outside of court. As the blogger himself describes, in July Carreon sent a letter to the blogger's employer, Walgreens. Ostensibly the letter asks Walgreens to preserve digital evidence based on Carreon's unsupported presumption that the blogger must have used Walgreens computers or internet connections to blog about Carreon. The context and content of the letter, however, suggest that Carreon's true motives are retaliation and intimidation. Carreon hopes to get the blogger in trouble with his employer and thus impose a high cost upon his decision to exercise his First Amendment rights to criticize and ridicule Carreon. Remember — Carreon has spent much of his career styling himself as a free speech lawyer.

Now, "please preserve digital evidence" letters can have a legitimate purpose, and are not uncommon. I've sent a few myself (for instance, when a stalker used CraigsList from work to post fraudulent "looking to trade sex for a room" advertisements in the name of a romantic rival.) But they are also a favored tool of legal thugs. Charles Carreon is not himself a convicted domestic terrorist, but by sending this letter he's using a tactic akin to what convicted terrorist Brett Kimberlin used in an effort to intimidate critical bloggers. Carreon's history of conduct in this case suggests his purpose in writing the blogger's employer in this manner. Stay tuned.

[Disclosure: I provided limited legal assistance to the blogger, mostly including helping him find suitable pro bono counsel. Since then, though I have not appeared in the case, I have continued to offer limited pro bono advice. Consider my words accordingly. Nothing in this post reveals attorney-client communications between the blogger, the legal team, and me.]

[admin]

The Oatmeal v. FunnyJunk, Part XII: Brave Sir Charlie Ran Away
Oct 18, 2012
By Ken White.
Effluvia

[All of our coverage of Charles Carreon's journey from relative obscurity to justifiable infamy is collected under this tag.]

Charles Carreon continues to be Charles Carreon, only more so.

Back in Chapter Eight I describe how the blogger behind "Censoriousdouchebag — a satirical diary about Charles Carreon" sued Carreon for declaratory relief in federal court in the Northern District of California. That was the most effective way to deal with Carreon's censorious threats to the blogger, which amounted to "I'm going to sue you at some point, in as inconvenient a location as possible, in as expensive a way as possible." Here's a reminder of that threat, directed to the blogger's pro bono attorney, Paul Alan Levy of Public Citizen:

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:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. 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.
3. 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 the sake of convenience and the need for speed, and not from a lack of resources.
4. 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.
5. 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.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. 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.
8. 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).
9. 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.
10. 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.

Despicably thuggish.

Once the blogger sued him, Carreon could have stood up — he could have come to court to defend his belief that he has a valid claim against the blogger. Instead Carreon has been doing what he can to hinder and delay the lawsuit by cowering and evading service. The blogger — ably represented pro bono by Paul Alan Levy of Public Citizen and Cathy Gellis — has been attempting to serve Carreon, and Carreon has been going to ridiculous lengths to avoid being served. You can read Paul's brief describing Carreon's evasions here, and Paul's supporting declaration here. Or consider the judge's summary in an order from this week:

Plaintiff seeks a declaratory judgment that his satirical website does not infringe the trademark defendant has in his own name. Prior to filing a complaint, plaintiff’s counsel was in contact with defendant via email. After filing the complaint, defendant and his wife publicly discussed the pending litigation. Plaintiff’s counsel mailed defendant a request for waiver of summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of events was repeated after plaintiff filed an amended complaint. At plaintiff’s request, the Court issued a summons, and plaintiff hired an Arizona process service company to serve the summons at the residential address. On the first visit, the server announced himself and was told “No thank you,” and left with the papers. On the second and third visits, nobody answered. The process service company then tried to serve the summons and complaint by certified mail, but the package was never claimed.

During this time, defendant contacted the general counsel of Walgreens, plaintiff’s employer, stating plaintiff had used Walgreens’ computer equipment or internet access to create the allegedly actionable website, and implying he might make Walgreens a party to the litigation under a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson, Arizona address and email address that plaintiff had been using to attempt service on defendant.

On September 25, 2012, plaintiff’s counsel again emailed defendant a copy of the summons, complaint, and amended complaint using both the address listed on defendant’s letterhead and the gmail address defendant had used to correspond with counsel for both plaintiff and Walgreens.

Plaintiff’s counsel requested defendant meet and confer about plaintiff’s intent to file a motion to declare service effective. Defendant has not responded.

Regrettably, even though Carreon knows about the lawsuit, has written about the lawsuit, has threatened the blogger's former employer about the lawsuit, has refused to accept service from a process server, and has returned the lawsuit unopened, the Court has ruled that the blogger must make further efforts to serve Carreon:

Because of the due process and personal jurisdiction concerns that arise with respect to proper service of a defendant, substituted service by email is not granted out-of-hand. While defendant is apparently making service of process difficult for plaintiff, in accordance with our traditional notions of due process, plaintiff must redouble efforts at traditional service of process before resorting to this Court for authorization of substituted service.

So: now the blogger must pay to have process servers hang out and try to catch Charlie the Censor to serve him. That's an expensive proposition — about $60 per hour, in an effort that can easily take tens of hours if Carreon continues to work to evade service.

The blogger doesn't have a lot of money. Though Carreon will eventually be ordered to reimburse his service costs, right now those up-front costs are a huge barrier to him being able to get justice. This is exactly how censorious lawyers like Carreon can abuse the system to suppress criticism.

Therefore, I'd like to ask for a favor. If you've enjoyed reading this series, please consider making a modest donation to Public Citizen for the purposes of paying costs in this case, including the cost of serving Carreon. Levy's post with the donation link is here. I understand that any excess funds will be used to pay litigation expenses in other Public Citizen online free speech cases. That's a worthy cause.

Perhaps you'll say, "Ken, why don't you put your money where your mouth is?" I'd answer like this: I believe strongly enough in this case that I donated the filing fees and other initial expenses — more than $700 — out of my own pocket. Please step up and throw in a few bucks yourself to help a blogger protect himself from censorious thuggery.

[admin]

In Which Charles Carreon Says Mostly True Things About Me In A Footnote
Mar 20, 2013
By Ken White.
Law

Last year I blogged quite a bit about the saga of the saga of attorney Charles Carreon's disputes with Matt Inman of The Oatmeal. I have an update. It is a minor one.

You may recall that Carreon uttered extravagant threats against a satirical blogger, only to settle the case in the blogger's favor when the blogger — aided by Public Citizen — sued for declaratory relief.

That case is now embroiled in a dispute over the blogger's request for attorney fees. Mr. Carreon, resisting any award of fees, served me with a subpeoena for communications with the blogger and the blogger's attorneys of record. I objected. Mr. Carreon has now filed his opposition to the motion for fees; you can read about his arguments at Techdirt or Adam Steinbaugh's blog.

I write not of the substance. I confine myself to noting footnote one of Mr. Carreon's brief:

White, a criminal defense lawyer with a Libertarian following, derides other lawyers at Popehat.com as “Censorious Asshats.”

http://www.popehat.com/2012/12/26/vote-in-the-secondannual-popehat-censorious-asshat-of-the-year-poll/ White conceived a special dislike for the Lawyer, recruiting readers to play a “Twitter hashtag game: #charlescarreonnewcareers,” and recruited them as an “Army of Davids” to “take a screenshot or print … to pdf [any] web page” showing that the Lawyer had made “an inconsistent statement [or] shows hypocrisy.” (Carreon Dec. ¶ 5; Exhibit 1.) When served with a subpoena for documents in this case, White responded with the disclosure that he had exchanged over 200 emails with the Gripesite Operator, and refused to produce anything, claiming that the Lawyer possesses “animus” towards White. (Carreon Dec. ¶ 5; Exhibit 2.)

Much of the footnote is true. I am a criminal defense attorney. I have a libertarian following. I deride attorneys, including Mr. Carreon, as censorious asshats. I conceived a special dislike for Mr. Carreon. I made up a hashtag game about him, and recruited people to point out where Mr. Carreon and his wife had engaged in rhetoric that was inconsistent with his contrived pearl-clutching horror over the contents of Mr. Inman's blog.

But Mr. Carreon's last sentence suggests that I refused to produce documents a subpoena in a federal case on the grounds that the lawyer issuing it had animus against me.

That is, at the most charitable interpretation, misleading.

Here are the objections I filed to Mr. Carreon's subpoena. As you can see, I objected to the subpoena, and declined to produce documents, on the grounds that (1) some of the communications Mr. Carreon sought were protected by the attorney-client privilege, or by the attorney work product doctrine, and (2) some of them didn't exist and never, so far as I knew, had existed.

The only mention of animus came in the paragraph in which I refused to produce a privilege log. A privilege log is a time-consuming document that would identify each email, its date, its subject, its sender, its recipient, and the basis for the assertion of privilege. It is a burdensome task. In my objections, I refused to produce such a log, on the grounds that Mr. Carreon had no good faith basis to demand the documents, and that the demand was likely made to harass, in light of his animus against me. The point about animus is located in the discussion of the privilege log, after I have refused to produce the documents based on the privilege.

Mr. Carreon's suggestion that I refused to produce documents based on an argument about his animus is, therefore, misleading at best. At worst, it is a deliberate lie to a United States District Judge. Or perhaps it merely represents a failure of even minimal reading comprehension. Mr. Carreon attaches my objections as an exhibit, as the footnote quoted above suggests; whatever this is, it's clumsy.

I leave the decision about which one it is to the reader — and to the judge.

[admin]

Charles Carreon Encounters Actual Legal Consequences
Apr 12, 2013
By Ken White.
Effluvia

All of my coverage of the saga of Charles Carreon, his threats against Matthew Inman of The Oatmeal, and his dispute with a satirical blogger are collected here.

When I write about prolonged bad behavior in the legal system, I often get angry comments from people who say "when will the system impose consequences on people who act this way?" Take heart, I respond. The wheels grind slowly, but they grind. "Bullshit," comes the response. "Prove it."

Very well. How about an order requiring Charles Carreon to pay $46,100.25 in attorney fees?

Charles Carreon became infamous when he rashly threatened Matthew Inman of The Oatmeal, leading to infamy and spectacle. Later he made very foolish and extravagant threats against a satirical blogger, leading to a declaratory relief action against him. He evaded service for a while, then capitulated in that case, but has been fighting over whether he should have to pay attorney fees.

Today a federal judge in the Northern District of California granted the motion for fees by the satirical blogger, granting $46,100.25 in fees to the blogger's attorneys, Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis. They had been seeking a total of $77,765.25.

Judge United States District Judge Richard Seeborg's order awarding fees is devastating to Carreon. Judge Seeborg rejects Carreon's arguments one by one, and finds Carreon's litigation conduct rendered the case exceptional, justifying a partial award of fees under the Lanham Act:

While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. The Ninth Circuit discourages major litigation with respect to attorney fees. See, e.g., Camacho, 523 F.3d at 981; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”). Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and Public Citizen Law Group.” Doc. #45, at 4. Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.

Judge Seeborg rejects Carreon's argument that the settlement precluded an award of attorneys fees. Carreon drafted his own offer of judgment. He could have made it clear that the offer precluded fees. He didn't.

Defendant cannot now escape the consequences of his inartful drafting.

Charles Carreon could have escaped with a much lower award, or no award at all. The court declined to award fees for the filing of the declaratory relief suit itself, or for the brief litigation of its substance, finding that Carreon's initial threats did not render the case exceptional under the Lanham Act. The bulk of this order — $37,650.25 — results from Carreon's bizarre discovery demands in response to the motion for fees itself, which the court described as "unnecessary, vexatious, and costly." Most of the rest of the order — $8,450 — results from Carreon's evasion of service. So, instead of facing a costs bill for a few thousand dollars at most, Charles Carreon is facing a bill for $46,100.25. Character is destiny.

There are consequences for bad behavior. They come slowly. But they do come.

Note: I was going to wait for Paul Alan Levy to write about this first, since it's his win based on his work. But Adam Steinbaugh and Mike Masnick scooped me.

Edited to add: Paul Alan Levy offers his thoughts, plus some very kind words for which I am grateful.

[admin]

In Which I Offer Apologies
Aug 3, 2013
By Ken White.
Effluvia

It has been brought to my attention by Charles Carreon — the attorney of Oatmeal v. Funnjunk fame — that I have victimized the following persons and entities in a reign of terror:

Thomas Menino, Mayor of the City of Boston
The Legislatures of Arizona and Connecticut
Michael Meehan, Chief of Police of the City of Berkeley
Meghan McCain
The Federal Trade Commission
Imaginary Lawyer David Blade

. . . . and many others.

In these depredations I have been aided by persons and entities identified by Mr. Carreon as "rapers," including but not limited to PZ Myers, Marc Randazza, the American Civil Liberties Union, and the University of Reading Atheist, Humanist & Secularist Society.

This is because of Plato.

I would like to apologize sincerely to everyone I have tyrannized (Except for the legislature of Arizona, because fuck you, fascist nutjobs. )

[admin]

An Open Letter To Charles Carreon
Aug 7, 2013
By Ken White.
Effluvia

Dear Mr. Carreon,

I've written some harsh things about you here in the course of covering the dispute that erupted when you sent a cease-and-desist letter to Matt Inman of The Oatmeal. You, in turn, have had some strong language about me at various locations including your site "Rapeutation.com." You accuse me of a "reign of terror" on this blog against people I criticize. You also assert that there should be a tort of "Distributed Internet Reputational Attack" allowing plaintiffs to sue when they experience a sustained online attack on their reputation.

I propose an online public debate on these topics.

May I suggest the following:

1. We will each pick one nominee, and those two nominees will agree on a moderator.

2. The moderator will choose where online to post our respective input in the debate.

3. Once a week, for six weeks, one of us will pose a question to the other, or make an assertion. The other will then have a set time to respond — shall we say four days? — and then the initiator of that cycle may reply within two days.

4. We will trade off on initiating questions or assertions. You may go first if you want.

5. We will email our input to the moderator, who will post it and have sole control over it, so that neither of us might fear a biased forum.

6. We can allow comments, or not, at your option.

7. The moderator can be empowered to delete personal attacks, or not, at your option.

8. We will agree not to pose questions that would require the other to breach attorney-client confidences or otherwise interfere with professional duties. So, for instance, I would not ask you to reveal communications between you and your client, FunnyJunk, nor would I seek your evaluation of a ruling against you in a pending case.

9. We will agree that the topics will relate to the intersection of free speech, reputation, online culture, and the role and duties of an attorney. If you agree, the permitted subjects may also include the statements we have made about this public dispute.

10. I will offer two examples. The first is this: "Submitted: the tort of Distributed Internet Reputational Attack, as proposed by Mr. Carreon, cannot be reconciled with the First Amendment as interpreted by modern courts, nor with the value of freedom of expression." The second is this: "Mr. Carreon: on your web site Rapeutation.com, you list 'David Blade,' Craig Brittain, and Chance Trahan as 'victims' of my 'reign of terror.' Can you explain in what sense they are 'victims,' and in what sense my writing about them is a 'reign of terror?'

Mr. Carreon, I would be happy to entertain proposals from you for amendments to this debate procedure.

Very truly yours,

Ken White
www.popehat.com

[admin]

63 Comments (Hey, Did Somebody Say Something Was Going On With The Oatmeal?, 6/12/12)

eddie • Jun 12, 2012 @10:37 am I frequently depend on knowyourmeme.com to provide me with executive summaries of lolcat captions.


Owen • Jun 12, 2012 @10:39 am Ahh…exactly what I was expecting. Can someone post this on FunnyJunk? I don't want to actually visit that site…


Mad Rocket Scientist • Jun 12, 2012 @10:40 am The Oatmeal is a GOD. I hope he has a lawyer or three lined up to waffle stomp funnyjunk


Suz • Jun 12, 2012 @10:46 am Great post, Ken. I don't often have time to read Matt's comments, but yesterday I made time, and yes I saw you there. Kudos to you! I hope this little kerfuffle (so to speak) goes down as one of the Great Moments in the History of Bitch-slapping Stupid Bullies.


Narad • Jun 12, 2012 @10:55 am Something tells me The Oatmeal's response will not be transcended in my lifetime. I honestly cannot remember the last time I've laughed this long and hard.


Scott Jacobs • Jun 12, 2012 @11:18 am Hey Ken… Have you heard what is going on with The Oatmeal?


Reuven • Jun 12, 2012 @11:18 am "I found people supporting The Oatmeal by saying that the FunnyJunk moderator was acting like "a Jew.""

Well, then, there are no clean hands in this and I'm not going to have a dog in this race.


dullgeek • Jun 12, 2012 @11:42 am Do not forget, sir, that *you* have a well deserved award for badassery. You are a legend in your own right. And, as one who reads both of you, I immediately thought that the combination of the pope-meal-oat-hat would be all kinda previously unmeasured awesome.

So don't be so humble. (A phrase I suspect you rarely hear.)


Dan • Jun 12, 2012 @11:57 am As a reformed habitual cartoon doodler and a fellow Sriracha zealot, I love and admire The Oatmeal. I strongly recommend reading The Oatmeal's take on the zombie apocalypse.


joe • Jun 12, 2012 @12:00 pm That is some funny shit. The Oatmeal sounds like a bit like a non-lawyer version of Ken and he certainly has the appropriate level of snark in his response to FunkyJunk’s lawyer.. The only thing missing was a light swizzle of some legal precedents at the end explaining exactly how they were going to get waffle stomped to the curb if they pursued a lawsuit against The Oatmeal. I also noted in the demand letter from Charles Carreon the statement “Your false statements injured FunkyJunk in its trade, business, or profession.” I have yet to figure out exactly how or to what extent or if in fact such a thing were even possible given FunkyJunk’s audience/user base and business model.


perlhaqr • Jun 12, 2012 @12:05 pm Wow. That response from the Oatmeal is pretty amazingly badass and awesome.

I really hope I never end up a target of his squirrely wrath. Then again, I try to avoid acting like that much of a sawtoothed douchnozzle, so I probably don't have to worry about it all that much.


Scott Jacobs • Jun 12, 2012 @12:24 pm I have yet to figure out exactly how or to what extent or if in fact such a thing were even possible given FunkyJunk’s audience/user base and business model.
Well, duh… Calling out theft does tend to make it harder to steal…


Rob • Jun 12, 2012 @1:27 pm This post is almost as funny as The Oatmeal's response to the lawsuit, which is high praise indeed, as The Oatmeal's response was fucking hilarious.

By the way, I think you missed a NOT in this sentence:

I will note, however, that Mr. Carreon and FunnyJunk are by far the first people to try the "you named me when you said mean things about me; that's a trademark violation" gambit…

ShelbyC • Jun 12, 2012 @1:35 pm Unfortunately, the streisand effect works to funnyjunk's advantage here, I'm sure they're getting loads of traffic in response to all this.


Bill H • Jun 12, 2012 @1:49 pm "I found people supporting The Oatmeal by saying that the FunnyJunk moderator was acting like "a Jew.""

Well, then, there are no clean hands in this and I'm not going to have a dog in this race.

Pretty good bet that was a moby, Reuven. We had a similar problem even more despicable than that about a year ago at AoSHQ, when a commenter for LGF came to a thread, planted a couple of racism bombs, then when they weren't removed immediately (it was the middle of the night), LGF claimed it spoke to how racist Ace and the Moron Herd really was.

So, I would take the alleged anti-Semitism of The Oatmeal and it's so-called "defenders" with a shaker of salt.


joe • Jun 12, 2012 @1:52 pm Scott – actually what I meant was it did not appear that users/audience of FunkyJunk altered their use of the FunkyJunk site as a result of The Oatmeals request asking the FunkyJunk to remove his stolen content. Therefore I couldn't see how The Oatmeals request could have injured or damaged FunkyJunk's business. And, was commenting to the effect their lawyer was spouting nonsense with no proof of damages to back it up.


Scott Jacobs • Jun 12, 2012 @2:51 pm I know, Joe…

I just wanted to call them thieves.


SPQR • Jun 12, 2012 @3:03 pm That response was as good as the old legendary "Some moron is writing letters using your name" response.


Chris • Jun 12, 2012 @3:09 pm I really hope someone posts the letter comic response to funnyjunk


Jesse • Jun 12, 2012 @3:21 pm I wonder if Washington state has a SLAPP statute that provides for attorney's fees. If so, this lawsuit could be funny.

Also, I really want a t-shirt that reads: "THE INTERNET IS AN ARCHIVE, IDIOT."


Bret • Jun 12, 2012 @4:02 pm Jesse,

A summary of Washington's anti-slapp statute is here:

http://www.citmedialaw.org/legal-guide/ ... washington

It appears to be modeled after the California statute and does allow for "your attorneys' fees, your court costs, and an automatic statutory damage award of $10,000".


Pete • Jun 12, 2012 @4:20 pm people who would need others to provide them with an executive summary of a lolcat caption
Oh. Oh my. It's like Ferrari and Audi and Porsche got all their engineers into a warehouse (with A/C and refreshments) and said to them "You do not make engines now. You make words."

And lo the entire team did labor for weeks and months, and then gave up all hope and entered into deepest despair upon seeing this one snippet of brilliance.


Anonymous • Jun 12, 2012 @6:15 pm Okay, http://www.petulantamoralcensoriousdouchebaggery.com now created and pointing to Charles Carreon's website. (As soon as DNS propagates.)


Jack B. • Jun 12, 2012 @6:22 pm If Inman would illustrate Marc Randazza's quotes in this post, it would probably add up to something deserving of being displayed in The Louvre, next to the Mona Lisa.


Michel • Jun 12, 2012 @6:37 pm So, when is this fellow going to join Jack Thompson in the ineffably incandescent hell that is reserved for disbarred and defrocked attorneys and barristers?


Matthew Cline • Jun 12, 2012 @7:32 pm To be fair, about him taking a shot at the fund raising: the fund raising is tied into an insult about his mother having sex with a bear, so he might not be entirely rational about it.


flip • Jun 12, 2012 @7:36 pm I am not surprised that there are people out there on the net who don't understand copyright. In fact, I deal with plenty of plagiarism from people who you'd think would know better, let alone those who are ignorant on the subject. I even had one person accuse me of lying simply because I was younger than them. What is it with people who think that just because something is on the net it's ok to use it for their own purposes?


jess • Jun 12, 2012 @8:13 pm Gottta love Randazza's comments — – - -

"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."

Here is to hoping Carreon has in fact (1) realized the error of representing this particular cause/client and (2) not gotten into a pantywhuffle over The Oatmeals charity and tried to shut it down.

Otherwise I can see Ken and Marc's comments of " petulant, amoral censorious douchebaggery" and "more fucked up than a rhino raping a chinchilla while dressed up in unicorns' undergarments" being forever burned into the "internet archive" alongside the image of
http://www.naderlibrary.com/chasflag4.jpg


Max Kennerly • Jun 12, 2012 @8:19 pm As I wrote at my site, there's a lurking half-legitimate issue in there about whether making accusations of intentional infringement is something separate and apart from filing a DMCA notice, and thus could in theory expose content creators who make public accusations of intentional infringement against user-generated-content sites to liability. I just don't think this case, factually, is really set up to raise that issue, this is pure trolling of a party (The Oatmeal) with a legitimate greviance.

I really do wonder what FunnyJunk and Carreon expected out of this.


ElamBend • Jun 12, 2012 @8:47 pm I think I may have to memorize Randazza's eloquence as a model example of effusive shock and aspire to come sorta close.


Hal_10000 • Jun 12, 2012 @9:58 pm "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."

I rarely actually laugh out loud but good gravy! It's almost lyrical.


Gonzo • Jun 12, 2012 @10:57 pm Hooray! I just like that something I sent to Ken got mentioned, even at 1/31 diffusion! Good lord, i hope that when I'm a guy with a paunch i'm this popular.


Hank Roberts • Jun 13, 2012 @8:17 am > Given the sort of people who hang out on FunnyJunk …
> much of what is posted there is other people's work,
> scraped and slapped up without permission or attribution.

These Internet users are a series of tubes, you know.

Tubes are users who are long, hollow, and empty.

They are pipes — they copypaste from one webpage to another, without attribution, without citation, and without thinking.

But why?


HK • Jun 13, 2012 @12:04 pm ShelbyC • Jun 12, 2012 @1:35 pm
Unfortunately, the streisand effect works to funnyjunk's advantage here, I'm sure they're getting loads of traffic in response to all this.
Except that curious clicks to confirm that you are a thief and a douche bag is not the same as traffic that grows your site. In other words, you have to keep the new visitors, or you just have a one day spike because you're a jerk.

James Salsman • Jun 13, 2012 @2:18 pm Forget the sites' squabbling. We need an opinion on who can reliably insure the expected $1 million in cash for the photo shoot.


ReadCarefully • Jun 14, 2012 @4:58 am > Well, then, there are no clean hands in this and I'm not going to have a dog in this race.

If you'd read more carefully you would've realized this was FUNNYJUNK users who were saying this.


DiMono • Jun 14, 2012 @6:00 am Hey, I thought you should know that I did some search digging on funnyjunk, and I found that not only is the site ripe with stolen material, but the search results are literally hardcoded to provide no results if you search for it by name. Search for cyanide happiness and you get nothing; search for cyanide on its own and you get over a thousand C&H comics, many of which say cyanide & happiness right in them. So FJ is more interested in hiding the fact that they're stealing copyrighted content than they are with removing it.

I wrote a detailed article about it here, complete with screenshots since it's likely they will have suppressed the results of the searches I used as well by now.

That they're trying to get the fundraiser shut down is despicable and new, though, so now I'm off to edit that information into my article.


Scott Jacobs • Jun 14, 2012 @6:47 am Welcome from RT, DiMono!


T. J. Brumfield • Jun 14, 2012 @7:29 am It is a logical fallacy to say that Inman's cause isn't just because one random asshat on the internet made a racist comment and agrees with Inman. That doesn't mean that Inman is a racist, nor that his cause is predicated on racism.

http://www.nizkor.org/features/fallacie ... ation.html


TexasSwede • Jun 14, 2012 @10:31 am Teh funny thing is that Charles Carreon has a blog (comments only for registred users), where he seemingly is critical of Youtube being able to host illegal/copyrighted content and not being sued:
http://www.charlescarreon.com/notable-c ... 010/06/23/

"That’s a distorted reading of “right and ability to control.” Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. To say they have no “ability to control” infringing videos until they know that they are infringing is like saying I can’t control my appetite until I know the caloric content of my food. If I were Viacom, not that I want to be Viacom, I would tell my lawyers to appeal on the grounds that the district judge distorted the meaning of the statute here."

and

"Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it."

and finally:

"Google’s general knowledge that there was a whole lot of infringement happening on YouTube didn’t mean that it was obligated to start screening for infringing content or hunting it down once it was posted, because their job is just to have an effective takedown system to remove content once the creator tells them it’s infringing. The burden of discovering infringing content never shifts to the Online Service Provider, and it’s always the copyright holder’s job to find it and identify it by URL."


Ken • Jun 14, 2012 @12:53 pm Make sure to view the latest updates to the post.


Kevin • Jun 14, 2012 @1:41 pm As a recent law school grad struggling to find a job an IP, I'm pretty disappointed that nobody has even moved for Chapter 10 sanctions against Carreon. It's a shame the state Bars are so shy about sanctioning(or even disbaring) attorneys for non-stealing-your-clients'-money ethical violations. I don't mind losing out to seasoned attorneys with more skills and experience than I have to offer, but it does bother me that men like Carreon, whose main talent seems to be knowing how to be just thuggish and unethical enough to be effective and avoid prosecution, are out there taking a large share of the business all while making the profession look bad.


Ken • Jun 14, 2012 @1:45 pm Well, Kevin, one impediment would be that no one has filed suit yet, preventing anyone from moving for anything. Also, I'm not sure what you mean by Chapter 10 sanctions. Do you mean under Texas' code of civil procedure? Because I'm not aware of any connection of the case to Texas.

I agree, though, that State Bars should be more vigorous.


Niedermeyer's Dead Horse • Jun 14, 2012 @1:46 pm Oh my! For a moment there I thought you were talking about the head Ewok, Ace from Ace of Spades.


Patrick • Jun 14, 2012 @3:21 pm What is Chapter 10? Is this some Canadian thing?


SPQR • Jun 14, 2012 @3:55 pm Unless he means Fed rules FRCP 10 … err, plus 1. Yeah, that's the ticket.


Inuzuka • Jun 15, 2012 @1:26 am Heh, gotta say I'm one of the Darths & Droids fans.

This is an awesome story and I hope the money The Oatmeal manages to collect doubles and is put to good use.


Kevin • Jun 15, 2012 @3:20 am Thanks for the catch, I did actually mean Rule 11. I've been reviewing my bankruptcy code for an interview, and got it a bit mixed up in my head.

Your point is well taken that the rules governing complaints can't take effect until a complaint is filed, even when a letter is deliberately filed to give the impression that one has been. I was assuming, given Carreon's ballsiness and apparent complete lack of self-awareness, that he must have acted on one of his threats at some point in his career and actually filed one of these baseless suits. Having read a bit more about him, I realize he's probably a lot smarter than I give him credit for, and that his scheme probably still works even if he has to backs down every time a potential defendant is ready to go to trial.


Anonymous • Jun 15, 2012 @7:57 am Oh, he went and changed his website. Now it's just forwards to an ad for his book, along with an "apology"(?) at the top, and a link to download it for free.


SuperExec • Jun 15, 2012 @8:14 am What's a lolcat? Please Cc my super-hot new secretary.


Jesse • Jun 15, 2012 @11:38 am Okay, if somebody could retcon the infamous ex parte graphic into a super-heroic ewok, my life would be complete ….


Joan of Snark • Jun 17, 2012 @7:52 am Bravo, sir.

Am I the only one who reads "Carreon" as "carrion"?


Menachem • Jun 17, 2012 @11:53 pm So, in supporting The Oatmeal, the "valiant" and "righteous" of the internet find it ok to make fun of Jews.

Irony, except to those of us who are Jewish who would have otherwise sided with The Oatmeal.


Menachem • Jun 17, 2012 @11:58 pm Note – My above post is not saying all people, or even all supporters of The Oatmeal, are anti-Semitic. I'm just really exasperated at how easily people in general feel that they can make fun of Jews for no other reason than to get a laugh or make a point that has nothing to do with us.


Ken • Jun 18, 2012 @7:13 am Note – My above post is not saying all people, or even all supporters of The Oatmeal, are anti-Semitic. I'm just really exasperated at how easily people in general feel that they can make fun of Jews for no other reason than to get a laugh or make a point that has nothing to do with us.
Menachem: I'm not sure I follow. I see something in my post calling out FunnyJunk for having anti-Semitic material, but I don't see anything mentioning Carreon's ethnic or religious heritage. Where are you seeing this making fun of Jews?


Grifter • Jun 18, 2012 @7:30 am I'm guessing it's the reference to "I found people supporting The Oatmeal by saying that the FunnyJunk moderator was acting like "a Jew.""


Ken • Jun 18, 2012 @7:33 am Yes. In a paragraph condemning FunnyJunk and the things people post there. Isn't it completely clear, between the sentence, the context, and the quotation marks, that the reference is condemning racism, not condoning it?


Grifter • Jun 18, 2012 @7:40 am Right. But it was a comment from someone defending theOatmeal, so I believe the commenter was expressing frustration about that; the comment wasn't a dig on you or the article. At least that's how I read it.


Menachem • Jun 18, 2012 @9:02 am Grifter has it spot-on. I love your article(s) on the subject, and love The Oatmeal. I'm just tired of seeing my culture and people made fun of even by people who are standing up for what otherwise is the "right" thing. Not a dig on you or a defense in any way of how moronic Funnyjunk and Carreon are acting.


i love a good tale of ass-hattery • Jun 20, 2012 @8:57 am how could a winner like charles carreon (or is it carrion) have fallen so far into the mire?
hmm… seems he has issues with comingling – twice he has been disciplined for "for violating his duty to maintain client funds in trust"
maybe he needs money to pay his visa bill?


Sample Statements • Jun 21, 2012 @11:10 am You can still have a perfect meal at oatmeal.


M. • Jun 29, 2012 @1:19 pm You have a legal department? The mind boggles.


M. • Jun 29, 2012 @5:53 pm The Internet is a truly invaluable entertainment tool. I wonder if, before the WWW, your average suburbanite would even have an inkling that people like this exist – not only from lack of exposure to the greater world, but because the Internet itself seems to provide your garden variety egomaniacal nimrod with an irresistible platform upon which to hoist himself from his own petard. Really, it's a freakshow with no admission charge.

It's not that I don't care about the deeper issues here, mind you, just that I don't think there's anything left capable of surprising me.

[admin]

PART 1 OF 2

149 Comments (How Dare You! That's The Wrong Kind of Bullying!)

Garrick • Jun 13, 2012 @5:01 am Well-said, Ken. Thanks for shining a light on this nasty little corner of the internets.


John Kindley • Jun 13, 2012 @5:46 am As a contrarian, let me nevertheless say that I in general approve of the tactic you describe, of jumping on the bandwagon so to speak. But it is imperative on the jumper before he jumps to exercise some independent thought. It is not enough to simply say that the enemy of my friend is also my enemy. Sometimes our friends are wrong. In this post for example you say that Crystal Cox attacked the child of her enemy. In my opinion this isn't true. She registered the domain name containing the name of the child of her enemy. One can speculate that she intended to use the domain name to attack the child, but to my knowledge she has never done so. Registering that domain name was indeed a bad move on her part, because it allowed her enemies to portray her as a monster who goes after the children of her enemies. All of a sudden the events that led her to become so angry become irrelevant, because nothing justifies attacking the child of one's enemy, even though she had not attacked the child of her enemy.


TomB • Jun 13, 2012 @5:55 am John, there is a simple, universal rule in this world. When in the middle (or beginning, or end) of a dispute, you never, ever, EVER involve children. Registering a domain name with a child's name and waving it in front of the parent is, by definition, involving a child in a dispute amongst adults.

It. should. never. be. done.


Ken • Jun 13, 2012 @6:15 am John, I think you can only adopt that interpretation of Crystal Cox's actions by willfully ignoring her past actions — like her written, proven extortion. And I can see no possible non-thuggish reason to register the domain name of an enemy's child. But if you prefer, I can re-open comments on the Cox post to discuss it.


TJIC • Jun 13, 2012 @6:15 am > If this were an 80-year-old probate lawyer, I could write this off as culture shock.

Been there, done that.

http://www.daily-nonsense.com/Blog/copy ... ity-ensues


Grandy • Jun 13, 2012 @6:15 am John, your grand show of saying nothing was almost as good as Prometheus'.


TJIC • Jun 13, 2012 @6:16 am @JohnKindley:

> One can speculate that she intended to use the domain name to attack the child, but to my knowledge she has never done so.

If a woman pulled a pistol on my child, it's POSSIBLE that it's actually unloaded and she intend on using it to brush a bee that's just landed off the child.

On the other hand, that's not how I'd interpret it.


TJIC • Jun 13, 2012 @6:17 am @Grandy

> John, your grand show of saying nothing was almost as good as Prometheus'.

Prometheus' visuals were better.

John's character motivations made more sense.

It's a tie.


Justin D. Jacobson • Jun 13, 2012 @6:21 am I agree with everything you've said, including this: "There's no reason to exalt Carreon's power and condemn The Oatmeal's."

What I don't understand is, given your premise, why you think it is okay to exalt The Oatmeal's power and condemn Carreon's. We need to be careful about excusing conduct simply because we like the person doing it or find their comics humorous.

"Bullying" shouldn't be condoned regardless of the form it takes or the person who does it.


Ken • Jun 13, 2012 @6:26 am Justin: well, for one thing, Carreon's power represents the ability to use the force of the state against an individual for his speech, and take advantage of a system that does a poor job of protecting defendants from extortion and of separating merit from not-merit.

By contrast, The Oatmeal's power involves only encouraging readers to express themselves. No state power is involved. The Oatmeal's readers' speech cannot force Carreon into a distant court, force him to surrender papers, force him to answer questions under oath, or force him to pay tens or hundreds of thousands of dollars in attorney fees.


G Thompson • Jun 13, 2012 @6:28 am @John, I seem to remember a month or so that you stated unequivocally that you were going to stay neutral on this whole sordid affair about Crystal Cox so that you too don't get forced down the rabbit hole or something to that effect? Or was that my imagination? http://www.peoplevstate.com/?p=1989 – nope seems it was real

Your intelligent, you understand about intent, you understand about maliciousness and threats that people like Crystal keep doing and how they try to socially engineer through subtlety acts of extortion and fraud whilst acting like they themselves are so altruistic so that some people who should know better and should know all about the psychology of con artists all of a sudden think that these malicious individuals (who are also bat shit crazy and slightly psychotic) are so hard done by just because they have taken the time to stroke the ego's of the fools they have now conned.

As for the topic of this post, I suspect this lawyer is now understanding that maybe the law is beginning to evolve into it's original premise of "no fear nor favour" and what the owner of the Onion wrote back and did is up there, and might be even the US (or Internet at least) equivalant of that famous reply in Arkell v. Pressdram (1971) [unreported UK ] http://www.nasw.org/users/nbauman/arkell.htm


TJIC • Jun 13, 2012 @6:41 am @Ken:

> Carreon's power represents the ability to use the force of the state against an individual for his speech…The Oatmeal's power involves only encouraging readers to express themselves.

This.

In my legal contretempts 18 months ago, I bore no ill will to customers who found my opinions objectionable and decided not to do business with me. Good for them! Spend your money where you will – that's freedom.

On the other hand, I have nothing but seething rage for the armed statist bullies who threatened me, lied to me, implicitly held incarceration over my head, tried to trick me, tried to use bull crap laws against me, etc.

The power of social disapproval and loss of commerce is just and good. It's part of society.

The power of government intimidation is illegitimate, immoral, and evil.


Mad Rocket Scientist • Jun 13, 2012 @6:50 am Bullying is about power. A bully has power, knows he has power, knows how much power he has, is secure in that power, & most importantly, is willing to exercise that power to his own ends.

An attorney who knows how to use the power of the law and, due to the nature of our legal system, is secure in the knowledge that the law will most likely work for him whether he be right or wrong, can be a bully.

An internet artist/comedian has only his talent & his pulpit/website. The power of The Oatmeal lies not in his knowledge of the law & how to manipulate the system, but rather in his wit, and the willingness of his fans to rally to him. Until now, that willingness has never been tested. His cause is (IMHO, righteous), and thus his fans rally in his defense. If he tried to rally his fans again for a different reason, one not so righteous, he may find himself bereft of power. The power of The Oatmeal is fickle & not secure.


Mannie • Jun 13, 2012 @6:57 am There's a proverb that dates back to the Good Old Days(tm) (Oh, how I miss the Diptheria!) when these battles were fought out in the Letters to The Editor column.

"Beware of getting into a letter writing battle with someone who buys ink by the barrel."

We buy our pixels by the barrel.


W. J. J. Hoge • Jun 13, 2012 @7:03 am Lawyers might want to remember the motto on the masthead of my website: Never pick a fight with a man who buys pixels by the terabyte.


Justin D. Jacobson • Jun 13, 2012 @7:19 am @Ken:

First, you're engaging in some serious hyperbole. Carreon isn't Emperor Palpatine. He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few. I certainly understand that there can be imbalances of power when dealing powerful corporations and small individuals. But that's clearly not the case here. In fact, we know that The Oatmeal has had access to legal counsel during this specific situation.

Second, you write: "By contrast, The Oatmeal's power involves only encouraging readers to express themselves. No state power is involved. The Oatmeal's readers' speech cannot force Carreon into a distant court, force him to surrender papers, force him to answer questions under oath, or force him to pay tens or hundreds of thousands of dollars in attorney fees."

You seem to be suggesting that the response The Oatmeal elicited was unexpected and merely fortuitous. This flatly contradicts the whole premise of the post, i.e., that Carreon was an idiot for messing with the power of the Internet. True, The Oatmeal can't assert any force in the legal arena (though he could, of course, hire an attorney to do so on his behalf). However, he could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.

Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.

Look, I like The Oatmeal. Ironically, I'd never heard of FunnyJunk before this nonsense. I understand that this response should have been obvious to Carreon. However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?


JRM • Jun 13, 2012 @7:20 am But Mr. Carreon's feelings were hurted. The Oatmeal is some sort of Internet Thing, which doesn't have feelings and just acts hurtful. Words can hurt just as much as stepping on shattered glass. (FN1)

Even if Oatsy didn't call for a direct attack of the clones, its words were hurtful enough. Self-esteem is very important to self-actualization, and injuring the self-esteem of Mr. Carreon – which he has so clearly tried to develop – is not good for society. He should, of course, sue Oatsville personally:

Count 1: Intentional Infliction of Emotional Distress. It could not be more clear that Oatguy is deliberately feeling-hurting.

Count 2: Libel. It's a deliberate lie to say someone isn't competent just because some of the legal or factual assertions they make don't completely match your precious objective reality.

Count 3: Interference with Prospective Business Advantage. How will Mr. Carreon get paid from any of his employers if people think he's a marginal, whinging idiot? How is this fair?

Count 4: Mendacity Corum Nobis. "Corum Nobis" is Latin, and you should always have one charge in Latin. I bet Oatmuffin doesn't even know Latin and he'll have to hire a lawyer and then at least poor Mr. Carreon won't have to deal with Oats4breakfast.

Anyway, I hope this helps Mr. Carreon.

FN1: In my actual experience, stepping on glass is much more painful, but my mother assured me it's words that are hurtful.


JRM • Jun 13, 2012 @7:28 am Justin/7:19 a.m.:

Carreon would have felt free to make more baseless allegations against less-savvy individuals and extort settlements. (Not Crystal-level extortion, but legal extortion.)

I'm not against legal threats with some basis to them, but completely baseless legal threats deserve to be crushed. Sunlighting nonsense legal claims is a good thing.

And Oatmeal didn't want people to personally pester Carreon, I don't think. I think he did want Carreon to be shamed. Getting hammered in the press is a legitimate result of this, and Oats' actions in getting that to happen serves as a solid deterrent to further nonsense by Carreon and others who would be him.

(Or maybe Carreon should sue. See above for my true feelings. Or not.)


Patrick • Jun 13, 2012 @7:38 am However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?
He'd have gone to his client and asked, "Do you want to file suit at my hourly rate?"

On Monday Carreon was credibly threatening litigation. Do you believe Carreon wants to sue The Oatmeal now that he's had a taste of this very bitter medicine?

Do you believe that even an astronomic fee could convince him to file suit against The Oatmeal, today?


Jordan • Jun 13, 2012 @7:38 am All the instances of FunnyJunk reproducing the Oatmeal's content are broken.

I hope FunnyJunk's lawyer didn't instruct them to delete those links, as doing so could be instructing a client to destroy relevant evidence…


Justin D. Jacobson • Jun 13, 2012 @7:51 am @JRM:

There are two separate issues here: The tactics deployed by both parties, and the substantive legal issue. I've been avoiding the latter one like the plague. I note that Ken hasn't really addressed this either. But, I will say this: The allegations are not nonsense, and they are not patently false.

If we set the Wayback Machine to 1984, we used to have something called the Betamax, which was among the earliest VCR's. Universal Studios sued Sony (the makers of the Betamax), alleging that the device was nothing more than a machine for infringing on copyright. The Supreme Court issued an opinion that rejected the argument under the idea that it could be used for the valid purpose of "time-shifting". This landmark decision has been called on recently to defend file-sharing sites such as YouTube, BitTorrent, and, yes, FunnyJunk. (I don't expect a lot of you take issue with BT; how many of you have used it?)

The basic argument is this: FunnyJunk (and similar sites) do not post original content but merely provide a platform for others to do so. This has generally been found to be an acceptable method provided that the site takes down offending content when it is noted. Whether or not FunnyJunk is doing this or not, I don't know. However, they claim that they are. Ironically, they did take down everything with "Oatmeal" in it, which the Oatmeal complained of because it only left unattributed material. He then notified them of specific pages where his content remained. It appears that FunnyJunk has now removed those pages as well. Based just on these facts, FunnyJunk would appear to be acting properly. (Whether or not they did so in a timely manner, I don't know.)

The primary issue complained of in Carreon's initial letter is that The Oatmeal made a false accusation of willful copyright infringement. If the allegations are true, it is indeed defamation. In my opinion The Oatmeal's statement that "[FunnyJunk has] practically stolen my entire website and mirrored it on FunnyJunk" does not rise to the level of defamation. But it would be wrong to say the claim is baseless, nonsense, or patently false.


Xenocles • Jun 13, 2012 @7:53 am "He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few."

Really? The license to practice law confers no privileges?

As for the rest, the "I'm only representing my client" bit only works for defense attorneys. When a plaintiff's lawyer takes a case he has the moral duty to evaluate its merit and its effects on the defendant, just as mercenaries don't evade responsibility for murdering people because that's what the job was.


Justin D. Jacobson • Jun 13, 2012 @8:00 am @Patrick:

That proves the point. If the lawsuit were indeed credible or, let's say for sake of argument, even fully appropriate. The fact that he has been bullied into not pursuing it because of Internet pressure seems wrong to me.

@Jordan:

Now they're in trouble for taking down the offending material as The Oatmeal requested? In any case, it wouldn't be any kind of spoliation problem for taking down the pages provided they have preserved the material elsewhere.


Justin D. Jacobson • Jun 13, 2012 @8:08 am @Xenocles:

I was addressing Ken's hyperbole. Of course a license to practice law confers authority. But we're just attorneys–not super-villains.

Yes, an attorney must act ethically even in the zealous representation of his client. But, "murdering people"? We're awfully close to Godwin's Law territory, people.


Patrick • Jun 13, 2012 @8:10 am Justin, what precisely do you propose to be a remedy for inappropriate bullying of attorneys by the internet? Gag orders as prevail in the United Kingdom?

Note that I don't share your assumption, for the sake of argument, that this claim was fully appropriate. I drew my own conclusions after reading Carreon's letter and The Oatmeal's response. The case has been tried in the court of public opinion, and Carreon and Funnyjunk have lost. This is fully appropriate.


Ugh can not remember • Jun 13, 2012 @8:19 am TJIC • Jun 13, 2012 @6:15 am – unfortunately, the link you provide has lots of dead links on it, so it is difficult to follow the story. I read it when it happened, but I wish the links there still worked. I was a good read.


Justin D. Jacobson • Jun 13, 2012 @8:19 am That's a great question, Patrick. I'm not proposing a remedy at all. I certainly do not propose gag orders or censorship. On the other hand, resorting to the court of public opinion is itself problematic. It's great when the court of public opinion is on your side. But the public is often on the "wrong" side. It ends up as merely a different sort of bullying.

What I'm proposing is simple: civility–in both directions.


Ken • Jun 13, 2012 @8:25 am He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few. I certainly understand that there can be imbalances of power when dealing powerful corporations and small individuals. But that's clearly not the case here. In fact, we know that The Oatmeal has had access to legal counsel during this specific situation.
The existence of hundreds of thousands of attorneys does not ease the abusiveness of the legal system. It enhances it. It means that, because of the competition for legal work, it is easier to find an attorney to do something malicious, frivolous, meritless, or unethical.

Also, the very problem with the legal system is that the freedom to hire a lawyer does not protect you from the defects in the system. Hiring a lawyer is important — often essential to protecting your rights — and I usually highly recommend it. However, it's a gigantic cost. A lawyer, in our system, means that you may eventually prevail — or that the amount of tribute you're forced to pay to bandits is moderated. But in a system that does a bad job at terminating meritless suits early, does a poor job at making plaintiffs and plaintiffs' lawyers pay the costs of meritless suits (thus offering little incentive not to file them), and a bad job at managing the costs of litigation as it is ongoing, getting the best lawyer in the world doesn't mean you won't get screwed, even if you win.

You seem to be suggesting that the response The Oatmeal elicited was unexpected and merely fortuitous. This flatly contradicts the whole premise of the post, i.e., that Carreon was an idiot for messing with the power of the Internet. True, The Oatmeal can't assert any force in the legal arena (though he could, of course, hire an attorney to do so on his behalf). However, he could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.
No, nothing I said can be reasonably read to imply that the result The Oatmeal elicited was unexpected to him. Tell me — why should one not disparage someone professionally if they do something professionally disgusting?

Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.
Yes, if many people read you on the internet, and you point out somebody's bad behavior on the internet, some small percentage of them is going to act badly. (What percentage is open to dispute: I see no reason to take at face value the characterizations of the butthurt, like Carreon, and false flags are always an issue.) However, I see this truism increasingly deployed to suggest "you shouldn't call out bad behavior because some people will act badly when you do" — in other words, "shut up and take the bad behavior." I don't agree.

However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?
Carreon, seeing success, would have continued to threaten and bully. The Oatmeal, if he responded through an attorney, would have unfairly incurred not insignificant costs.

But tell me — why do you ask that question? Why not ask "what would have happened if the attorney had taken a different approach?" Why not ask why the attorney didn't send a letter saying "my client has taken great strides to eliminate copyrighted material, and feels your cartoon is, based on those strides, harmful and unfair. Could we please discuss it?" rather than opening with a demand? Had he done that, and The Oatmeal published it and ridiculed it, I would have thought The Oatmeal was being a dick.


Ken • Jun 13, 2012 @8:33 am Also, any discussion of The Oatmeal's year-old post that generated Carreon's legal threat is not complete without a reminder of how FunnyJunk responded to that post.

I would summarize it thus:

1. The Oatmeal makes post complaining about FunnyJunk being run on a profit-from-infringement model.
2. FunnyJunk posts, to its flying monkeys, a "he wants to shut us down! contact him anyway [sic] you can!" post.
3. A year later Carreon threatens to sue The Oatmeal for his post, demanding that he take down his content.
4. The Oatmeal posts a public response.
5. Now some are saying "that was wrong to call FunnyJunk and its lawyer out publicly!"

You can see why I am unimpressed by #5.


John Kindley • Jun 13, 2012 @8:35 am GThompson, I am the only blogger I'm aware of who appeared to "sympathize" with Crystal Cox (unless you count her own attorney, whom Ken recently rightly referred to as a First Amendment "demigod"), so I felt prompted to respond to the post's reference to her sympathizers.

Grandy, You say my comment said nothing. I am on record as being skeptical of internet circle-jerking and "internet-mobbing." My comment was intended as something of a corrective to that. I generally approve of and applaud Ken's Popehat Signals and his rallying of the internet troops to worthy causes, with the stated caveats. It's effective. It can counter genuine bullying. If I hadn't been slacking off on blogging over the last month or so I would have or probably should have lended what little support my little blog could offer to these efforts. Sometimes mobbing is warranted and justified. (Circle-jerking, on the other hand, is usually never a good idea.)

Ken, I have to take exception to the suggestion that I am "willfully ignoring" her past actions, although admittedly I haven't done an in-depth study of everything she's ever done. But if we're talking about the same two alleged instances of extortion, the letter to one attorney and the email to another attorney, I would find her "not guilty" of extortion if I was on a jury, based on that letter and that email. That means I have a reasonable doubt it was extortion. That's not willful ignorance. I understand that meeting that standard is not required in order to opine on the internet that something looks like extortion.


Justin D. Jacobson • Jun 13, 2012 @8:37 am @Ken: You're not making any distinction between FunnyJunk and Carreon. The lawyer's C&D was not public. The Oatmeal escalated as to Carreon when he went public.

This was my point from the outset: Why is 99% of the venom directed at Carreon and 1% at FunnyJunk?


Grandy • Jun 13, 2012 @8:39 am Jordan, the following is mere speculation on my part, that said what I took from the response posted at TheOatmeal was that said links were live when it was posted (And it has since been updated to note that the links are now broken, strengthening my belief). I can't speak to the legal ramifications.


Jordan • Jun 13, 2012 @8:42 am @Justin

"Now they're in trouble for taking down the offending material as The Oatmeal requested? In any case, it wouldn't be any kind of spoliation problem for taking down the pages provided they have preserved the material elsewhere."

FunnyJunk is threatening a lawsuit for defamation. Truth is a defense to defamation. If FunnyJunk in fact linked to the Oatmeal's content, wouldn't you agree that is relevant to a defamation suit…?


Ken • Jun 13, 2012 @8:42 am Justin: again, I don't see why the recipient of a censorious threat letter has any obligation, moral, legal, or etiquette, to keep a threat private. Keeping it private enhances its effectiveness. By contrast, publicizing threat letters helps the public recognize that it not necessary to yield to them, eroding their general effectiveness and eroding attorney power to bully.


Jordan • Jun 13, 2012 @8:43 am "You're not making any distinction between FunnyJunk and Carreon. The lawyer's C&D was not public. The Oatmeal escalated as to Carreon when he went public. This was my point from the outset: Why is 99% of the venom directed at Carreon and 1% at FunnyJunk?"

1. Not public? When you write a letter, unless it's privileged, it's public.

2. Because lawyers are supposed to counsel their clients and say "Gee, threatening a defamation suit where you linked to a bunch of their stuff is probably a stupid idea. It will get you into more trouble than it's worth, and you'll look silly."

Kind of like what happened here…


strech • Jun 13, 2012 @8:45 am The Oatmeal … could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.
Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.
1) God forbid the Oatmeal "disparage the man professionally" … it's not an illegitimate exercise of power to criticize someone for sending you half-baked legal threats.

2) The Oatmeal did not "cripple his on-line presence". He did. As Ken put it when talking about political correctness,

But if you act like a jackhole and people call you on it, you are not a victim of political correctness. You are a victim of being a jackhole.
What's crippling his online presence is people talking about his behavior.

3) The behavior of asshats would not be unexpected, if it happened. That doesn't mean The Oatmeal would be responsible for it. He didn't send threats. He didn't call for threats. He didn't even ask people to contact Carreon or FunnyJunk.
To hold him accountable for the predictable behavior of asshats would give asshats a bizarre reverse heckler's veto. (I'm talking in a moral sense here – you seem to be critical of the Oatmeal fighting back the way he did because of the actions of 3rd parties).


Jordan • Jun 13, 2012 @8:52 am Delicious irony:

FunnyJunk tried to pull this on the Oatmeal -

http://theoatmeal.com/blog/funnyjunk2


Grandy • Jun 13, 2012 @8:52 am Yes, John, I did accuse your post of lacking substance. Because while the words all mean something together they are less than the sum of the parts. Reading the registration of a child's domain name as innocuous or even somehow "neutral" is absurd and possibly disingenuous (I extend you the benefit of a doubt here and don't assume the latter). There is no getting around this. That particular comment is rhetorical nonsense.


Dan Weber • Jun 13, 2012 @8:54 am I do worry about the power of the mob. Just because The Oatmeal wasn't using state power doesn't mean there's nothing to worry about.

But I was impressed that Oatmeal blocked out the lawyer's personal information when he reposted the letter. (I saw it within about 45 minutes of the original posting so I assume I saw the original version.) If any schmuck wanted to track the lawyer down to harass him, Oatmeal at least made them work to do it.


Ken • Jun 13, 2012 @8:57 am That proves the point. If the lawsuit were indeed credible or, let's say for sake of argument, even fully appropriate. The fact that he has been bullied into not pursuing it because of Internet pressure seems wrong to me.
Why?

He's only being "bullied" from filing in the sense that people are lambasting his threat, and any filing would be highly unpopular. Why should a client — or a lawyer — be free from social comment on their lawsuit?

I remember a few years ago there was a couple — the husband a pastor — who encountered a little blind girl in public. The wife deliberately stood in front of the girl, who walked into the wife. The husband and wife sued, claiming negligence by the girl's parents, as I recall. The media picked it up, and the public reaction was swift and merciless. The couple withdrew the suit.

Was that bad? Was that wrong?

Sometimes the public's condemnation of a lawyer's behavior will be wrongheaded and evil. A good example is one I believe you brought up on twitter — the contemptible and un-American attacks on lawyers who represented Gitmo detainees pro bono. But the remedy for that is more speech. If people believe that Carreon's actions are actually praiseworthy, they can say so, and counter the speech of The Oatmeal's supporters. But that does not mean that the process of public comment on lawyer behavior is "wrong."


joe schmoe • Jun 13, 2012 @8:58 am @ John Kindley

"In this post for example you say that Crystal Cox attacked the child of her enemy. In my opinion this isn't true. She registered the domain name containing the name of the child of her enemy."

You have obviously never been stalked before.


Justin D. Jacobson • Jun 13, 2012 @9:06 am Oh boy. This is quickly spinning out wider than I can manage. Let me just reiterate my points in a more succinct manner:

1) Oatmeal's fundamental complaint about FunnyJunk is perfectly valid. The site contained improperly posted material. He had a right to be upset about it and respond.

2) The Oatmeal's initial response was reasonable. However, it contained language that would naturally be troubling to FunnyJunk, i.e., the accusation of theft on the part of FunnyJunk.

3) FunnyJunk's response, i.e., to disparage The Oatmeal to its users, was improper and unnecessarily escalated the situation.

4) Carreon's letter was generally reasonable and well within the norms for legal practice. However, it too was unnecessarily heavy-handed and escalated the situation. (In particular, I think the demand for money was a step too far.)

5) The Oatmeal was understandably angered by Carreon's escalation. However, The Oatmeal's response further escalated the situation by personally attacking Carreon in an inflammatory way.

6) The response to FunnyJunk, Carreon, and The Oatmeal is driven more by identity than by their respective actions.

That's my take.


Ken • Jun 13, 2012 @9:12 am John: I'm torn between wanting to respond and not wanting to derail further. Let me just ask this: when you elect to reserve judgment on whether or not Crystal Cox's registration of domains in the name of Randazza's wife and three-year-old daughter was part of an attack on Randazza through them, do you take into account the sorts of things she had previously written about Randazza's wife?

I can see an advocate for Crystal Cox, seeking to defend her, constructing an argument about how it requires speculation to determine why Cox registered those domains, and that we shouldn't speculate. But I find it very difficult to understand how anyone not acting as her advocate can reach that detached conclusion, given her past actions.


Justin D. Jacobson • Jun 13, 2012 @9:13 am @Ken

Short version: A lawsuit should be judged on its merits by an impartial arbiter–not based on the the popularity of the parties. I'm wary of considering summaries of cases for which I do not know the facts, but Carreon's response in this instance is not equivalent to the woman suing the blind girl's parents.

Let me put this another way: Do you think The Oatmeal did anything wrong in this situation?


Ken • Jun 13, 2012 @9:19 am Short version: A lawsuit should be judged on its merits by an impartial arbiter–not based on the the popularity of the parties.
But it will be — if he files suit. It will be "judged" — in the sense of "adjudicated" — by a (purportedly) neutral party, the judge and jury. You seem to be implying that there is a public obligation not to form opinions of cases. I think that sometimes the public judges badly, and that critique of the public's judgments are to be encouraged, but I don't believe anyone has an obligation not to speak their mind on the merits of a case.

Let me put this another way: Do you think The Oatmeal did anything wrong in this situation?
In the sense of morally or ethically wrong or non-frivololously legally actionable? No. Not that I have seen so far.


perlhaqr • Jun 13, 2012 @9:24 am "You're a jerk, Carreon. A complete kneebiter."


Grandy • Jun 13, 2012 @9:28 am Dan Weber, yes I agree it's an issue. Ken has touched on the issue many times here as you well know. Here's the thing, I'm not really interested in just saying "beware the mob" and making the evil eye every time a situation like this comes up (I don't think you are doing this, mind).

I can't speak to all the particulars here but TheOatmeal can and should encourage people not to be douche bags (he may know his audience well enough that he doesn't feel it's necessary; I might argue that since there is always the lunatic fringe, it's a good idea to do it anyway). That said, Camereon deserves public ridicule. We can deal with the "pro Oatmeal" (or Anti Cameron, as it were) lunatics as they come up. And we can do all of these things at the same time and should.


Justin D. Jacobson • Jun 13, 2012 @9:30 am I feel like this is winding down. I wanted to thank everyone for the high level of discourse. You guys have given me lots to think about, and I've modified my position based on it. I hope I've done the same. See, it is possible to argue civilly on the Internet!


joe • Jun 13, 2012 @9:31 am Sorry Justin – not buying it.

In large part because I cannot see how FunkyJunk was actually harmed by The Oatmeal’s statement that FunkyJunk “practically stole his website” To ask for $20,000 in damages assumes there are actual damages. Where are those damages enumerated? I saw nothing in Carreons letter describing any specific or provable loss of advertising revenues or other damage to FunkyJunks business. The former was never provided and later would have to assume the 12 year old boys and other monkeys that participate on FunkyJunks site actually understand copyright infringement or that if they did that they actually give a damn – clearly they don’t and didn’t. Seems to me no provable damages no lawsuit.

Furthermore, to send out such a letter, which was liberally sprinkled with other false accusations – such as SEO manipulation, etc. was clearly designed to do nothing more than create fear that The Oatmeal was in serious trouble and that he should cave in (I mean allow himself to be extorted) out of $20,000. Such action by any lawyer deserves to be publicly called out and ridiculed in hopes they will actually learn not to do it again.


joe • Jun 13, 2012 @9:32 am Cool – I hit the post button on my last comment before your post – so don't take it the wrong way please.


Ken • Jun 13, 2012 @9:37 am Justin: thank you for your willingness to argue an unpopular position politely.

And let me modify my last answer to you just slightly. I would have been happier if The Oatmeal had added an explicit "don't go be asses like FunnyJunk asked its crew to do" at the end. Nice, though not required.


alexa-blue • Jun 13, 2012 @9:38 am @ Justin: "Escalation" is pretty vague. Everyone on the internet seems pretty willing to escalate by calling someone a "fag" or "son of a bearlover" (obviously some have more panache than others). Whining, mocking, gnashing of teeth is mundane and if that's all this had been it would been quickly forgotten and ignored by pretty much everyone.

Heavy-handed, censorious demands for $20,000 cash or face lawsuit probably deserve a different verb.


Xenocles • Jun 13, 2012 @9:43 am "But, "murdering people"? We're awfully close to Godwin's Law territory, people."

You can use any act in their continuum of force if you're squeamish. Except by degree, how does it differ from Carreon's demand that The Oatmeal stop complaining and pay $20K or face a potentially ruinous lawsuit? There's no such thing as absolution by way of job description, as you seem to recognize.


Justin D. Jacobson • Jun 13, 2012 @9:53 am Not at all, Joe.

Let's be super practical for a minute here. Obviously, I don't know with certainty, but I can all but guarantee Carreon's thinking was along these lines: He sends the letter, The Oatmeal takes down the bit about theft, and the two parties never talk to each other again. Everyone goes on their merry way. I'm sure Carreon had no expectation of actually filing a lawsuit. I'm sure he had no expectation of actually getting paid.

Yes, that's the way this stuff usually goes. No, it's not a great way of handling things. I do have some sympathy for Carreon, as he got a shitstorm he clearly was not expecting–even though he brought it on himself with his heavy-handedness.

As a separate, technical matter. Defamation is an intentional tort. Even if a plaintiff cannot demonstrate actual damages, they could be awarded nominal damages and punitive damages. And the real issue of actual damages would not be with the users anyway; it could be as simple as loss of advertising revenue.

(NOTE: I am not asserting that FunnyJunk's case was a winner or that they would be able to sustain any such claim for damages. I'm only discussing in the hypothetical here.)


Xenocles • Jun 13, 2012 @10:01 am But here's the thing, Justin: if I hold a gun to your head it doesn't matter if I know it's not loaded. When you issue a threat it's entirely reasonable for the target and any observers to take it at face value. Arguably the threat is intended to be taken at face value – if not, what purpose does it serve? I mean, you don't go all in and immediately turn over your 2-7.


mojo • Jun 13, 2012 @10:09 am The Normal curve applies to lawyers too. And I'd say we're into "low-end tail" territory here.


Justin D. Jacobson • Jun 13, 2012 @10:13 am @Xenocles:

It's not like a gun to the head. It's just not. In the same way it's not like merely threatening to take away a child's toy. It's somewhere in between best described by what it actually is: A threat to file a lawsuit.

The Oatmeal could have responded directly to the lawyer along these lines: I disagree with your letter. Nevertheless, I have modified the language in my post to make clear that I am not accusing FunnyJunk of willful trademark infringement. However, I do not believe your client has adequately addressed my concerns as outlined in my initial post. Please take down the following improperly posted material.

No, it wouldn't have been as funny. That's why I'm a lawyer and not a web comedian.


Xenocles • Jun 13, 2012 @10:24 am Some people respond to threats with full compliance. Some try to negotiate a compromise. Some will spit in your face. If Carreon truly didn't think that third path could happen then he's a fool.

You seem to be uncomfortable with my hyperbolic analogies, and I can understand that. But I don't know what kind of lawyer you are if you don't understand that even defeated litigation can ruin a defendant. It's the very reason why settlements are so popular. Then again, some people are willing to look past the Pyrrhic part of a victory, and it seems like The Oatmeal is one of them (for now!).


Ken • Jun 13, 2012 @10:31 am This discussion reminds me of a quote from an email I received from a defamation-threatener who was outraged that I wrote about his threat:

You are supposed to shut down your articles out of respect and protocol. Then we discuss. I did my part as far as giving you proper notice.
I'll let people guess who that was.


Grifter • Jun 13, 2012 @10:36 am If I recollect, Justin, the Oatmeal gave them a list of links to examples of unattributed the Oatmeal comics, which they ignored and left up. They deleted only ones that attributed the Oatmeal, and have since had anything tagged "the Oatmeal" changed to "the fag", in addition to originally making false claims about the Oatmeal wanting to sue them. That seems as though it makes the Oatmeal's claims legit and non-defamatory?


Justin D. Jacobson • Jun 13, 2012 @10:41 am @Grifter

The issue, as I understand it, is that there would be no way for them to feasibly identify the offending, non-attributed posts. The Oatmeal did post a list of non-attributed links remaining, and those too have now been removed. There is a "copyright removal request" link on their site.

I certainly agree that FunnyJunk's response was improper. However, it would not make any potential defamatory claims non-defamatory. (Again, not that I think The Oatmeal's comments were, in fact, defamatory.)


Ken • Jun 13, 2012 @10:43 am Imagine, for a moment, the amount of time The Oatmeal would have to spend — or pay someone else to spend — to police FunnyJunk for misappropriated content, which is driving their traffic, which is making them money.

It's not feasible. Which is their business model.


Grifter • Jun 13, 2012 @10:44 am "have now been removed". But they weren't removed from the initial request, they were removed much later. During the time between the links were provided and they were still up, it was a fair comment to make.


Justin D. Jacobson • Jun 13, 2012 @10:45 am @Xenocles:

Maybe Carreon is a fool. I'm not ready to make that judgment, but that's not what I'm arguing in any case.

Yes, litigation can be ruinous. But those are outliers into which movies are made. See, A Civil Action. By and large, it is not ruinous. Inconvenient, yes. Expensive, sometimes. But, in this particular instance, would not have been ruinous to The Oatmeal. He acknowledged his access to quality, free legal services.


Justin D. Jacobson • Jun 13, 2012 @10:47 am @Ken:

I get that. But the Betamax case says that's okay. I'm not sure what the point of that argument is. Do you think FunnyJunk should be shut down? If so, you'll have to shut down YouTube first. Of course, we love videos of piano-playing cats, so that's awkward.


Justin D. Jacobson • Jun 13, 2012 @10:51 am @Grifter:

I haven't been able to deduce the timeline between The Oatmeal's listing of the specific offending posts and their removal. Certainly, any unreasonable delay on FunnyJunk's part would warrant a response.

Again, this goes back to the conflation of Carreon with his client. An attorney should never be tarred by the independent actions of their client.


Linus • Jun 13, 2012 @10:56 am If you threaten me "privately", and I believe the threat is merit-less and assholy, and then I say so publicly, I'm guilty of "escalation"? What ethical duty, what moral duty do I have to not comment publicly on it? All I can hear in my head is "ooh, bad form Jack." The idea that unless you lie back and think of England you are exhibiting poor manners and "escalating" is mewling silliness.


Justin D. Jacobson • Jun 13, 2012 @11:03 am @Linus:

It's objectively escalation. I'm not saying it's always wrong to "go public", but it is an escalation. I'm not saying it's bad manners. I'm saying it makes the situation bigger and less likely to be resolved, which is bad. That can be outweighed by benefits, as others have pointed out, such as discouraging bad behavior in the future. The problem, which is a potential issue in this case, is that the public assessment can be driven by the identity of the parties not by the merit of their respective positions. I.e., Carreon is a douchebag attorney, and The Oatmeal is hilarious.


John Kindley • Jun 13, 2012 @11:07 am Ken: Here's where we get to the "rabbit hole" in this conflict, down which I hesitated and hesitate to go further, and therefore declared my "neutrality." If this post by Cox was "beyond the pale," earlier actions by Randazza, which preceded and prompted this post, were arguably also beyond the pale. I interpret the post you linked to as an attack on Randazza, and on his decision to describe the event described in it, and about how that related to his "defense" of Limbaugh, rather than an attack on his wife. The way CC looked at it, according to her, Randazza had already put this story out there. CC obviously put a different spin on it, to make a rhetorical point related to Randazza's defense of Limbaugh. I personally think that rhetorical point is tenuous and strained. Honestly I don't see the harm done to Randazza's wife by that post, other than CC using a derogatory word to describe conduct already described by Randazza. It's not even clear from the post that CC herself believed that word should be used to describe that conduct. As far as the registration of the child's name, this was without a doubt intended as a giant Fuck You to Randazza, as in you were too damn dumb to register this name, as she has described her intent multiple times. But I seriously doubt that CC would ever have taken it a step further and used that domain name to talk about what she talked about in the post you linked to. After all, that post, as ugly as it was, didn't name the child.

I don't relish "defending" either that post or CC's decision to register the domain name of the child, both of which I recognize were misguided and distasteful. But if we look at that post and that decision fairly and as not so beyond the pale as precluding any consideration of what went before, we can consider what went before. As CC saw it, her former potential counsel was cooperating with opposing counsel and trying to get her thrown in jail. That's pretty damn serious, and likely to really piss off even the sanest among us. But I don't know the details and the correctness of CC's perceptions on that score. This is why I described this situation as a rabbit hole, and a situation I'd rather not weigh in on. Honestly I'm not taking sides. I think there's two sides to this story. This wasn't going to be a bandwagon I was going to jump on. If that makes me a "sympathizer" of Cox, so be it.


EH • Jun 13, 2012 @11:15 am Justin: A threat to file a lawsuit…unless they receive money. Why isn't that barratry?