Carreon v. Inman Showdown: A Cautionary Tale of 21st Century Lawyering and Marketing

Above: Matthew Inman’s Bear Love Good. Cancer Bad Cartoon.
Matthew Inman of “The Oatmeal” was embroiled in an epic legal battle with lawyer Charles Carreon and Carreon’s client, FunnyJunk.com. Thanks to a little “WTF!? Litigation,” Carreon v. Inman engaged netizens across the globe. For Internet law enthusiasts, the case was front-row-seat material. So much more than just an online copyright tussle, the FunnyJunk v. Oatmeal legal battle served as a cautionary tale about lawyering and marketing in the Internet age; it highlights the philosophical gap between old-fashioned lawyering and the fluid nature of today’s online marketplace; and perhaps most intriguingly, Carreon v. Inman is a lawsuit that makes tests whether or not the old marketing adage of “any publicity is good publicity” still holds true today.

“I’m not one to combat piracy,” Matthew Inman explained in a statement to Comic Riffs, “if you want to post my comics on your site, just don’t post 500 [of them] and just give me a link back.”

Inman’s statement succinctly encapsulates today’s “pro-piracy” zeitgeist. It’s also become a rallying cry for small- to mid-sized copyright holders who are willing to share their work in exchange for a little SEO link-love, but are fed up with “re-hosting” sites that blatantly profit off stolen material.

 

First: A Little About Carreon v. Inman

Before we get to the pulp of the drama, let’s first meet the players.

Matthew Inman, 27, is the creator of “The Oatmeal” – an original, popular, irreverent online cartoon and blog. Charles Carreon, a 1986 graduate of UCLA Law School, is legal counsel for Funnyjunk.com. Back in the day, Carreon litigated one of the first high-profile domain disputes; today, according to Comic Riffs, he’s angling to become the “go-to attorney for people who feel they’ve been cyber-vandalized or similarly wronged on the Internet.”

TheOatmeal.com is essentially Inman’s portfolio site. It’s filled with his original work, a blog, a quiz section and a marketplace where fans can purchase Oatmeal paraphernalia. According to reports, The Oatmeal attracts over 4 million page views a month. All in all, it’s a great-looking, user-friendly website that highlights Inman’s considerable talent – and no, it’s not littered with advertising and scraped content.

FunnyJunk.com, on the other hand, is a forum-like website that relies on user-generated content. Administrators claim infringement immunity under the Communications Decency Act and provide a questionable “copyright removal request form” on the site; questionable because it doesn’t provide the contact information for FunnyJunk’s DMCA agent – a requirement for DMCA compliance. Like other social-voting sites, posts on FunnyJunk.com are up- and down-voted by other users; “reputation points” are based on positive feedback. Unlike The Oatmeal, FunnyJunk is littered with advertisements – a point, thanks to contributory infringement statutes, that may come back to bite them in the butt.

The Oatmeal v. FunnyJunk: In the Beginning

The Oatmeal v. FunnyJunk saga started in 2010. Back then, Inman contacted FunnyJunk.com and asked the administrators to remove some copyrighted content from their site. As previously stated, FunnyJunk.com’s copyright removal page didn’t include a DMCA agent, but they ostensibly agreed to Inman’s request.

Ostensibly being the operative word.

Turns out that FunnyJunk.com simply removed all the content that WAS properly attributed to Inman, and left all the material that was not. Then, FunnyJunk pulled the ultimate in school-yard whining by changing all instances of the phrase “The Oatmeal” to “The Fag” on their website.

As Inman explained, filing a DMCA takedown notice for every single infringement would have taken an inordinate amount of time. Besides, Matt had more important things to do, like continue building one of the most successful online, graphics-based businesses in the U.S. So instead of going the DMCA route, Inman decided to make a post on his blog about FunnyJunk.com’s blatant infringement.  That was that – or so he thought.

At around the same time, FunnyJunk.com was in the process of retaining Charles Carreon as counsel. A self-styled crusader against “cyber vandalism,” Carreon got down to the business of lawyering on behalf of his client, FunnyJunk.com. As part of his efforts, instead of first making sure that FunnyJunk.com had rock-solid website disclosures, complete with a DMCA agent listed on the “copyright removal” page, he fired off a strongly worded letter to Inman after coming across The Oatmeal blog post that discussed FunnyJunk’s copyright infringement.

WTF!? You’re Actually Going to Sue for Defamation, Carreon!?

In Carreon’s letter to Inman, he demanded that Inman pay $20,000 for making a “false accusation of willful copyright infringement” against The Oatmeal’s “competitors,” FunnyJunk.com. The defamation, Carreon argued, centered on the fact that Inman defamed his clients by saying they were infringing on copyrights, when in fact, Carreon argued, they were protected by Section 230 of the CDA.

Carreon further argued that an alpha-numeric pterodactyl graphic, which appeared in the source code of Inman’s post about FunnyJunk.com, was “evidence” of actual malice. Additionally, Carreon averred that Inman’s statements constituted false advertising under the Lanham Act.

Here’s why Carreon’s claims are ridiculous:

1) The pterodactyl graphic was developed long before the fracas with FunnyJunk.com started and appears on nearly every page of The Oatmeal’s source code. It has absolutely nothing to do with taunting Carreon’s clients.

2) The defamation claims are ridiculous. Without even evoking legalese, common sense dictates that defamation is not pointing out that another website is posting copyright protected work without proper credit. Now, Carreon says that all the links that Inman said were infringing were removed soon after Inman made his complaints, thereby putting them on the right side of DMCA law; However, a quick look at one of the page’s cache proves that it was still intact on May 28, 2012. Carreon’s letter was dated June 2, 2012. It’s not a far stretch to infer from those facts that the links were taken down with the express purpose of sending the “extortion” letter to Inman.

3) The Lanham act specifies “commercial advertising and promotion.” As such, a lawyer could easily argue that Inman’s actions did not constitute “false advertising”

Crowdsourcing Success 101: The “Bear Love, Good. Cancer Bad” Campaign

Understanding the actual parameters of the Digital Millennium Copyright Act and United States’ defamation statutes, Inman made the following promise to both Carreon and Oatmeal fans:

Instead of mailing the owner of FunnyJunk the money, I’m going to send the above drawing of his mother.  I’m going to try and raise $20,000 and instead send it to the National Wildlife Federation and the American Cancer Society.

True to his word, Inman posted the campaign, “Operation Bear Love Good, Cancer Bad,” on Indiegogo.com, with the proceeds going to the American Cancer Society and National Wildlife Foundation. In true Oatmeal form, the campaign included a cartoon drawing of a “mother” having sexual relations with a Kodiak bear. In just over an hour, Inman had raised the $20,000. Inspired by the generosity of his readers, The Oatmeal creator kept the giving campaign open. Within three days, the amount had climbed to over $170,000 – all of it would go to charity.

Within minutes of Inman’s charitable campaign launch, thousands of copies of Inman’s mother-kodiak drawing landed in Carreon’s inbox; crank calls were made to his office; under siege, the beleaguered lawyer attempted to stop the onslaught by removing his contact information from his website.

WTF!? You’re Actually Going to Sue the American Cancer Society & National Wildlife Foundation Over This, Carreon!?

Carreon was ticked about the drawing. He told reporters that “accusing [his] mother of beastiality is revolting, and [he would] not forgive it!”

And with that, instead of cutting his losses and letting the incident die a slow death, Carreon opted to serve Inman with yet another lawsuit – this time over Inman’s failure to file a charitable disclosure or annual report, thus making him an unfit entity to receive charitable gifts.

To add some cache to the suit (and possibly to assure greater media coverage?), Carreon included not only Indiegogo, but the American Cancer Society and the National Wildlife Foundation, for illegally participating in a charitable giving campaign that was not in compliance with non-profit technicalities. In his claim, Carreon also asserted that Inman’s campaign violated Indeigogo’s terms of service – an argument which Indiegogo has since refuted.

The Electronic Frontier Foundation has now stepped in on Inman’s behalf, and will most likely make mincemeat of Carreon’s claim – further embarrassing the once lauded Internet lawyer. It just goes to show, as an Internet lawyer, you have to keep up – otherwise you may end up unintentionally knocking yourself out of the market – within a matter of hours.

The Oatmeal v. FunnyJunk: A Metaphor For The Current State Of Internet Law?

FunnyJunk.com v. The Oatmeal (which has now turned into Carreon v. Inman), is a fascinating case. Not only, as Comic Riffs pointed out, does the case involve two smaller-sized websites instead of a mega-corp like Google or Facebook, which makes it that much more accessible to the average user, but it also serves as an ideal case study for how vintage lawyering can sometimes prove disastrous in today’s digital marketplace.

In a matter of a few days, Carreon became Internet public enemy #1. The hive mind was incredulous that a lawyer could make such ridiculous demands of one of the more popular Web cartoonists around. Part of what was so infuriating was Carreon’s ostensible ignorance of current Internet culture. Not only did he seemingly fail to handle the most basic and foundational aspect of online business litigation by making sure FunnyJunk.com had a proper DMCA disclosure, but instead of cutting his losses after the first threat, he doubled down – thereby making himself a 21st century target and highlighting his arguable ignorance of the market in which he claims expertise.

Beyond Carreon, though, FunnyJunk.com v. The Oatmeal is noteworthy because it illuminates the cavernous gap between the mores of average Internet users and entrepreneurs versus the philosophical beliefs on which many of our Internet laws are based.

To illustrate, consider the fact that Inman did not originally file a DMCA takedown request. The truth is that most small-to-mid sized copyright holders don’t bother with the DMCA process. Why? Because the new generation of online business people aren’t diametrically opposed to “sharing;” heck, most don’t even remember life before the share-fueled Internet arrived. As such, these netizens rely on the exchange of free goods/info/data/links to build their brands and businesses. To this new wave of users and entrepreneurs, the time it takes to fill out DMCA takedown requests often proves too costly and time consuming.

Large corporations and lobbying associations, however, make considerable use of the DMCA process. Which begs the question: Are current Internet laws really drafted with the intention of protecting the average copyright holder and consumer, or are they written with the sole purpose of placating “fat cats” like the RIAA? I hate to say it, but in most cases the desires of the mega-corps and Godzilla-like lobbyists take precedence in the legislation writing process; resulting in:

1) A dearth of U.S. online copyright legislation that adequately impedes copyright trolls;

2) Improper rights protection for small to mid-sized intellectual property holders; and

3) Outrageous statutory damages based on agitprop compiled by biased entities.

Over the next few months, Carreon v. Inman is poised to be an oft-talked about Internet law case —not because of the legal prowess of Carreon’s lawyering, but because the Inman v. FunnyJunk.com drama has definitely brought a little LULZ to kick off summer 2012.

Kelly / Warner specializes in Internet law.  Our practice represents all types of startups, online marketing businesses, hosting companies, app developers and even hackers. Not only do we have a deep understanding of online intellectual property, defamation and advertising law, but we’re tech-heads ourselves (we even made our own legal app). Contact us today.

Article Sources:
http://arstechnica.com/tech-policy/2011/06/funnyjunk-vs-the-oatmeal/
http://arstechnica.com/tech-policy/2012/06/lawyer-tries-and-fails-to-shut-down-the-oatmeals-charitable-fundraiser/
http://www.forbes.com/sites/davidthier/2012/06/18/lawyer-charles-carreon-suing-the-oatmeal-american-cancer-society-and-national-wildlife-federation/
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