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FunnyJunk v. the Oatmeal: Copyright Infringement Complaints As Defamation 286

Posted by timothy
from the just-ask-l-ron's-successors-in-interest dept.
An anonymous reader writes "Funny as it might sound, FunnyJunk's threat of litigation against The Oatmeal raises a very important issue: the extent to which artists can complain in public about perceived or actual infringement of their works by user-generated content websites. Does it matter if the content creator accused the website of condoning or participating in the infringement?" The short story is this: Numerous Oatmeal comics were posted without permission to FunnyJunk; Oatmeal creator Matthew Inman lambasted FunnyJunk in the form of a blog post. FunnyJunk responded with a suit (or rather the threat of a suit) accusing Inman of willful defamation, unless he ponies up $20,000, which he doesn't plan to do.
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FunnyJunk v. the Oatmeal: Copyright Infringement Complaints As Defamation

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  • by Anonymous Coward on Tuesday June 12, 2012 @09:36AM (#40294699)
    Matthew is accepting donations [indiegogo.com], will take a picture of all his monies to send to the FunnyJunk attorneys, and will donate it all to charity.

    Right now it's standing at over $100k. Go internet!
  • by davebarnes (158106) on Tuesday June 12, 2012 @09:37AM (#40294709) Homepage

    The Oatmeal was correct. All the offending links worked yesterday.
    Now, FunnyFart has done some quick scrubbing.
    The WWF and Cancer Society will be very pleased.

    • by Bieeanda (961632)
      Replacement pictures will be up inside of a week, because FunnyJunk's userbase are a bunch of unfunny, entitled morons and they did the same damn thing the last time legal sabers were rattled.
      • by gl4ss (559668)

        userbase = the retards running the site in this case.

        user uploaded is their loophole they're using.

    • by fuzzyfuzzyfungus (1223518) on Tuesday June 12, 2012 @09:44AM (#40294795) Journal
      IANAL or anything; but one would think that hasty, trivially-verifiable, scrubbing of that offending content that you oh-so-just-couldn't-keep-up-with-the-burden-of-policing-it-was-all-the-users'-fault right up until you send a '20k or a lawsuit' letter worded in outright extortionate tones seems like a bad strategy.

      Given the DMCA safe-harbor provisions(much as team MPAA loaths them), it is entirely possible that the offending links did not subject funnyjunk to liability(since Oatmeal apparently didn't feel like playing DMCA whack-a-mole, so they hadn't necessarily received a takedown notice); but axing them after issuing a legal threat alleging that assertions of copyright infringement were defamatory sure smells like destruction of evidence... And courts tend to take a very dim view of destruction of evidence...
      • by makomk (752139) on Tuesday June 12, 2012 @09:48AM (#40294831) Journal

        IANAL, but as far as I recall the DMCA safe harbour only applies if you're not aware of the infringing content. Since Funnyjunk couldn't plausibly claim not to be aware of it once they'd sent a letter threatening to sue for libel over The Oatmeal's discussion of it, they basically had to take it down.

        • I am also not a lawyer; but I had the vague sense that there was a difference between 'knowing' in the sense of 'Yup, www.funnyjunk.com/infringingpicture.jpeg is an infringement' and 'knowing' in the sense of 'We have 100,000 plus images submitted by the bottom-feeding scum of the internet with no possibility of manual screening, the probability that there is some infringement in that collection might as well be 100%...".

          The former flavor of knowledge might damage your safe-harbor status; but funnyjunk s
          • by omnichad (1198475)

            I'm a bit surprised that they managed to find a lawyer...

            Did you see the goofy (hand-drawn!) letterhead [amazonaws.com] that lawyer is using? I don't think this is a lawyer to take seriously.

            • by Sloppy (14984) on Tuesday June 12, 2012 @01:03PM (#40297603) Homepage Journal

              I don't think this is a lawyer to take seriously.

              Maybe the whole "conflict" is to not take seriously, and is a conspiratorial hoax between oatmeal and funnyjunk. Or rather, those are the puppets and this is really a conspiracy between the puppetmasters: National Wildlife Federation and the American Cancer Society. What if this is all just an attempt to wipe out cancer in bears, thereby removing this important check on their population, so that they are finally able to overrun North America? I, for one, welcome our new ursine overlords.

        • by Dynamoo (527749) on Tuesday June 12, 2012 @10:15AM (#40295125) Homepage
          Indeed, it's the copyright holder or a nominee that can file a DMCA complaint. But it's of limited use as FJ's web host is in the Netherlands and is therefore not in the US jurisdiction. The Oatmeal could file a DMCA complaint with the major search engines, but it would be pretty pointless in that case I think.
      • by eldavojohn (898314) * <[moc.liamg] [ta] [nhojovadle]> on Tuesday June 12, 2012 @10:01AM (#40294971) Journal

        but axing them after issuing a legal threat alleging that assertions of copyright infringement were defamatory sure smells like destruction of evidence... And courts tend to take a very dim view of destruction of evidence...

        So let's talk about FJ's strategy in this quagmire they've created. First it started out with a pretty innocuous (though informative) question post [theoatmeal.com] and there is no indication of an offensive attack between one party or the other. FJ's response to this is to respond by describing two completely different scenarios to everyone while destroying evidence. First, they contact all their users and alledge that The Oatmeal is suing FJ [theoatmeal.com] while in reality they fire a threat of slander and libel lawsuit at The Oatmeal. Meanwhile The Oatmeal is being harassed by FJ users who seem to be confused that this is about The Oatmeal doesn't believe FJ has any members and is really just a bot.

        Basically the FJ admin and/or legal team is playing this like a money making entity would -- they're doing everything in their power to make users see one situation and the original content creators face another situation. And that's what happens when revenues are threatened, bad people get creative in bad ways and it usually has a very bad effect but is effective nonetheless. I hope The Oatmeal sticks to his guns on this one -- he's definitely in the right and he's definitely tackling a problem that persists on imgur, FunnyJunk and a number of other sites (yes, even YouTube).

      • by Anonymous Coward on Tuesday June 12, 2012 @10:17AM (#40295135)

        sure smells like destruction of evidence... And courts tend to take a very dim view of destruction of evidence...

        Deleting the records that show these links existed (the site backups) would be destruction of evidence. Not preserving the backups that would otherwise be deleted in the normal course of business could be considered destruction of evidence once there is an expectation of litigation and discovery.

        Removing the offending links? No, that's not destruction of evidence. You are not required to continue to commit wrongdoing to preserve evidence of that wrongdoing.

      • Seems like some of the FunnyJunk users agree with theOatmeal (http://funnyjunk.com/funny_pictures/3786053/Oatmeal+vs.+FJ/, http://www.funnyjunk.com/funny_pictures/3786664/Oatmeal+VS+Funnyjunk/ [funnyjunk.com]). I wonder how long that will stay up, and if the owner is investing personal time or has hired someone to make sure offending or problematic images (http://funnyjunk.com/funny_pictures/1244988/BEARODACTYL/) stay off the site.
    • by Calos (2281322) on Tuesday June 12, 2012 @09:52AM (#40294881)

      Actually, it seems to be more than that.

      I glanced over the original Oatmeal blog post. He mentions a bunch of other comics that are being ripped off. I followed a link from the blog post to the website, which is a query for "the oatmeal." No results found. So I tried a couple others - Cyanide and Happiness, Calvin and Hobbes... No results. Then I tried just "Calvin." Bunch of results, many of them Calvin and Hobbes, many of them with the name "calvin and hobbes" verbatim in the title and text.

      Unless their search index is just behind from the scrubbing, it looks like they didn't even scrub. They're just gaming the search results.

      • by littlebigbot (2493634) on Tuesday June 12, 2012 @10:35AM (#40295401)
        "Cyanide"|"Happiness Cyanide" returns results with Cyanide and Happiness. "Cyanide and happiness"|"Cyanide happiness" returns nothing.
        "Calvin" returns results with Calvin and Hobbes. Anything with "hobbes" in the search returns nothing.
        "Side far"|"Far" returns Far Side Comics. |"Far side"|"Farside" returns nothing.

        They are lazy.
        • by Terrasque (796014)

          *facepalm*

          Regex, the solution to every problem! Why do it right, when a regex can solve it?

    • by Thud457 (234763)
      FunnyJunk is cancer. And AIDS.
      The only useful purpose it serves is to segregate it's mouth-breathing minions from the rest of teh intarwebs.

      Makes it all the more funnyer that The Oatmeal is donating to research to curing cancer.
  • Pay $40,000 in damages in order to avoid a suit; then I will comply with your demand for $20,000.

  • by chrysrobyn (106763) on Tuesday June 12, 2012 @09:41AM (#40294771)

    I've never been to Funnyjunk before, but after this blew up, I decided I'd test out their claim about how easy it was to take down infringing images.

    Naturally, these sites make it wicked easy to upload any image, taking down an obvious one would be just as simple, no? Well, in 5 minutes I found a Cyanide & Happiness comic (explosm.net). I hit the flag button and found "copyright infringement" very simple to find. "Great!" I thought, "So simple to fix this problem." Nope, that takes me to a DMCA page where I have to type in a real name, e-mail address, phone number and supporting information.

    Wow.

    If it's so easy to upload an image, shouldn't there be a responsibility to make it just as easy to take one down? Of course, there would be a manual review process and some countermeasures to prevent someone from flagging the whole site (which may be mostly original content, that's a separate discussion), but it should be a whole lot easier.

    • by chrysrobyn (106763) on Tuesday June 12, 2012 @09:43AM (#40294781)
      Sorry to reply to myself, but I figured I should link to the easy to find copyright [funnyjunk.com] infringement.
    • by N0Man74 (1620447) on Tuesday June 12, 2012 @09:46AM (#40294813)

      I believe that to file a DMCA take down... you are supposed to be the copyright holder. AFAIK, the DMCA isn't intended for just any crazy yahoo to claim that something is copyrighted and should be taken down. They SHOULD be asking for your contact information, in order to ensure that it is a valid notice.

      Of course, contracting out groups to file DMCA notices on your behalf is another topic...

      • You are correct, a DMCA notice requires that the person filing is the owner of the copyright (or acting on their behalf, such as an attorney).

        That is the point the GP is making, isn't it? Funnyjunk does not require contact information to upload images, although they certainly could require it. Why not? Their business model is based on loose copyright enforcement.

        Craigslist makes it easy to post, and also easy to flag for removal. Facebook is at the other end. They generally know who you are when you post, a

        • by N0Man74 (1620447)

          I agree that the crowd could be good at picking up copyright, but that isn't the same thing as a DMCA take down request. If it is a DMCA take down request, understanding is that the take down notice is a statement, under penalty of perjury, that the person is authorized to act for the copyright owner (and that the request is a valid request).

          So, asking for contact information absolutely *IS* reasonable, and should not be done anonymously.

          You can ask the crowd to flag for copyrighted content, but that isn'

      • I hit the flag button and found "copyright infringement" very simple to find. "Great!" I thought, "So simple to fix this problem." Nope, that takes me to a DMCA page where I have to type in a real name, e-mail address, phone number and supporting information.

        I believe that to file a DMCA take down... you are supposed to be the copyright holder. AFAIK, the DMCA isn't intended for just any crazy yahoo to claim that something is copyrighted and should be taken down. They SHOULD be asking for your contact information, in order to ensure that it is a valid notice.

        Yeah, but having to fill out a DMCA takedown notice just to use the site's internal flagging mechanism? Kind of seems like they're discouraging users from notifying them of infringing content, does it not?

        IANAL either, but I do know the definition of 'due diligence,' and what OP is describing is not it.

    • by Qzukk (229616)

      shouldn't there be a responsibility to make it just as easy to take one down?

      It would be an interesting idea to try making a *chan where one click deletes any image or thread. See if there's anything at all left in there after a day.

      Most likely it would quickly devolve to the exact same image being uploaded over and over and deleted immediately at an immense waste of bandwidth.

    • by makomk (752139) on Tuesday June 12, 2012 @09:49AM (#40294847) Journal

      If it's so easy to upload an image, shouldn't there be a responsibility to make it just as easy to take one down?

      Not really. Otherwise you make it far too easy for groups like Scientology to take down material critical of them through untraceable false copyright claims.

      • by Theophany (2519296) on Tuesday June 12, 2012 @10:04AM (#40294997)
        Hence the manual review process mentioned in the parent. Once it is flagged as copyrighted material, a moderator should check the claim and if the claim is correct, remove the offending item. That way copyright infringement is dealt with both quickly and efficiently, without nutjobs and vandals having the power to remove material for their own gains or agendas.

        Crowd moderation in doing the grunt work - i.e. "I like the material by the author of this and it is being ripped off so I will report it as infringing" is also a fuck ton more fair than expecting copyright owners to police every shitty website on the internet to see if their creative works are being stolen.

        E.g. I like the C&H guys. If I see somebody unfairly using their works, I would report as infringing material. I certainly don't expect them to have the time to police the Internet when they're providing me with entertainment on a daily basis on such modest income means.
    • by mblase (200735)

      If it's so easy to upload an image, shouldn't there be a responsibility to make it just as easy to take one down?

      That can generate just as many complaints. Recently, George Takei's Facebook page put up a funny photo which nevertheless contained a picture of an old man's naked butt. Complaints were made to Facebook, and Facebook immediately deleted the image. Not blocked, not hid -- deleted. Takei complained that it should be policy for Facebook to hold the image out-of-sight somewhere until a defense can be made by the one who posted it.

      Admins can make it easy to remove stuff, or hard to remove stuff, but anything in

    • to a DMCA page where I have to type in a real name, e-mail address, phone number and supporting information.

      Actually that's pretty much required. A takedown request is a legal request, and you need to confirm that you are the copyright holder and have the necessary rights to request the takedown.

      For reference, see Google's takedown request page, which is actually *more* involved: http://www.youtube.com/copyright_complaint_form [youtube.com]

      Click "Copyright Infringement" then click "I am!"

    • To make it hard for the fascist content creators to infringe on Cory's freedom to host anything he wants.

  • Howver, the story doesn't end there (as most /. readers already probably know.... Inman put up a fundraising website to raise $20 000 to donate to cancer research (and bear love) - http://www.indiegogo.com/bearlovegood [indiegogo.com] - where he has up til now raised - brace yourself - more than $ 100 000 !!!
  • I'm sick of hearing about lawsuits in response to blog posts.
    Especially so in this case, when funny junk was in the wrong.
  • by denmarkw00t (892627) on Tuesday June 12, 2012 @09:48AM (#40294829) Homepage Journal

    So far he's raised just over $100,000 for Bears Good, Cancer Bad. Also, the writeup doesn't really sum up the whole situation:

    > Oatmeal's content was on FunnyJunuk
    > Oatmeal asked them to remove said content, they kind of complied but not really
    > Oatmeal writes blog post
    > FunnyJunk threatens to sue
    > Oatmeal starts campaign to raise $20,000 for Bears Good, Cancer Bad; ignores FunnyJunk threat

    Some of FJ's complaints, particularly about the "attacks in your source code" part are so laughable you'd almost have to assume that this, in itself, some "funny junk" they're pulling for the lols. Do they seriously consider an ASCII pterodactyl to be a threat against FunnyJunk? Do they seriously think that the word "FunnyJunk" on a web page is taking away their status in Google's search results? FunnyJunkFunnyJunkFunnyJunkFunnyJunk Slashdot doesn't like too much repitition FunnyJunkFunnyJunkFunnyJunkFunnyJunk at least let's see if I can break it up FunnyJunkFunnyJunkFunnyJunkFunnyJunk with some text here FunnyJunkFunnyJunkFunnyJunkFunnyJunk come on, Slashdot FunnyJunkFunnyJunkFunnyJunkFunnyJunk I just *know* that this will bump FunnyJunkFunnyJunkFunnyJunkFunnyJunk your Google search results when people FunnyJunkFunnyJunkFunnyJunkFunnyJunk search for FunnyJunkFunnyJunkFunnyJunkFunnyJunk

    Watch out Slashdot, FJ is coming for you next for knocking them down in Google's results ZOMGTHEINTERNETTHISISHOWITWORKS!

  • Ulterior motive? (Score:5, Interesting)

    by neokushan (932374) on Tuesday June 12, 2012 @09:51AM (#40294863)

    I strongly suspect that the Admin of Funnyjunk would know that he'd get a harsh reaction from fans of the oatmeal. I haven't been on funnyjunk in about 6 years but I visited out of curiosity and now I'm wondering how many people will be doing the same. How many more hits has FJ got because of this?
    The admin must have known that the oatmeal would never give into blackmail.

  • by cpu6502 (1960974) on Tuesday June 12, 2012 @09:53AM (#40294895)

    A Dallas photographer found his photo illegally being used on a bunch of websites. He filed the thousand-or-so DMCA notices to ask the photo be removed. Virtually all the websites complied except for ONE owned by Candice Schwanger, who is now suing the photographer.

    Why do people like Candice/Funnyjoke think they have the right to sue people they are copying from? It's hilarious. I have the judge pounds these people into the dirt, punishes them of 50,000 dollars, and hands it to the Victim whose photos/comics were infringed upon.

  • "Funny as it might sound, FunnyJunk's threat of litigation against The Oatmeal raises a very important issue: the extent to which artists can complain in public about perceived or actual infringement of their works by user-generated content websites. Does it matter if the content creator accused the website of condoning or participating in the infringement?"

    This doesn't seem like an 'issue' at all. The DMCA places limits on the circumstances under which a copyright holder can successfully sue a web host/
    • by omnichad (1198475)

      And really, if anyone is committing libel, then it's Funnyjunk - especially if it has the users convinced that The Oatmeal thinks FJ is a bot.

  • Nice to see more people fighting against the legal trolls.GIVE THEM NOTHING! [ted.com]
    • by cpu6502 (1960974)

      Relevance to this story? This is a clear case of a website stealing an artist's work. The artist has the privilege granted by the Constitution to demand his work either be removed, or paid for. To imply the artist does not have the right to hire a lawyer to protect his due income for labor performed, places you on the wrong side of the argument.

      • by Shadow99_1 (86250)

        What 'website' is 'stealing' anything when the content was user uploaded? You've now said this same message several times in these comments, but unless you can prove the site itself was the one uploading the copyrighted content rather than simply hosting it your claim is false.

        Now they may be doing a less than thorough job of cleaning up DMCA takedowns, but that is separate from "a clear case of a website stealing an artist's work".

        • by cpu6502 (1960974)

          Under the DMCA the website is held innocent of infringement as long as they remove the content. But FunnyJunk's refusal to remove content makes them complicit in the act & the owner can sue (again per the DMCA).

  • Goes both ways (Score:5, Insightful)

    by Anonymous Coward on Tuesday June 12, 2012 @10:12AM (#40295071)

    This, "we can post what we want," business goes both ways. FunnyJunk may not have any legal obligation to remove the offending content, but Inman was not lying when he posted his criticism of FunnyJunk. Everything he said was true. His opinion was that these facts made FunnyJunk unethical. He has a right to his opinion and he has the right to express it. FunnyJunk could have just left it at that, "Oh somebody on the internet doesn't like us, and that somebody has a large audience." Instead they decided to threaten to sue for defamation. Here's a hint guys. Defamation suits only work when someone is lying about you. It's like slander and libel. You can't sue somebody for laying out a set of facts and then expressing their opinion about those facts. That's not defamation. Somebody needs to go back to lawyer school.

    • You can sue somebody for laying out a set of facts and then expressing their opinion about those facts, but that doesn't mean you're justified or that you'll win.

      FTFY.

      Not that I think it's right to sue someone for telling the truth, merely pointing out that it is possible.

  • Cognitive Dissonance (Score:5, Interesting)

    by mooingyak (720677) on Tuesday June 12, 2012 @10:22AM (#40295215)

    It's an interesting claim.

    If we swap out FunnyJunk and Oatmeal for YouTube and RIAA, most of the details stay the same.

    Could YouTube sue the RIAA for saying that YouTube encourages piracy?

    At what point is a site operator responsible for the content their users upload?

    • by jiteo (964572) on Tuesday June 12, 2012 @10:56AM (#40295707)

      Hardly.

      TheOatmeal: angry and funny blog post to vent about FunnyJunk stealing his and others' comics
      RIAA: SUE ALL EVARYTHING!

      TheOatmeal: no actual DMCA takedown notices filed.
      RIAA: file ALL the notices!

      FunnyJunk, to users: harass the shit out of TheOatmeal!
      YouTube: K, I'm gonna take obey every takedown notice.

      FunnyJunk: SUE THEOATMEAL!
      YouTube: Shit, we're getting sued by RIAA Viacom. Oh hey, let's start Vevo.

      TheOatmeal: WTF they want HOW much? BEARS AND CANCER AND CHARITY!
      RIAA: Uh, we're still not making as much money as we want. Who else can we sue?

      • by mooingyak (720677)

        I'm speaking from a legal POV. If FunnyJunk is responsible for the infringement of their users, then so is YouTube.

        Just because Inman is a funny guy who only wants to write comics while the RIAA is full of assholes doesn't mean we should have a different set of laws for similar circumstances.

        • Except the facts of the cases are such:

          RIAA vs YouTube:

          1) RIAA finds infringing content on YouTube
          either:
          2a) RIAA files takedown notice at which point YouTube complies.
          or
          2b) RIAA sues YouTube at which point YouTube invokes Safe Harbor clause.

          FunnyJunk vs Oatmeal:

          1) Matt (aka Oatmeal) finds his comics hosted on FunnyJunk.
          2) Matt asks FunnyJunk to take them down.
          3) FunnyJunk takes some down, leaves others up, tells their users that Oatmeal is trying to shut FJ down and to harass Matt.
          4) Matt decides not to pu

    • Not really (Score:2, Interesting)

      by Anonymous Coward

      If we swap out FunnyJunk and Oatmeal for YouTube and RIAA, most of the details stay the same.

      Remind me again when it was that The Oatmeal, even once, instigated legal action over media it did not actually hold copyright to.
      Remind me again when it was that The Oatmeal, even once, demanded ruinous damages (eg. > US$10,000) against private individuals it accused of infringement.
      Remind me again when it was that The Oatmeal alleged infringement in cases which were clearly protected fair use.

      Remind me again when it was that The Oatmeal, even once, threatened to instigate legal action against anyone, e

      • by mooingyak (720677)

        I'm not claiming that The Oatmeal did any of those things.

        I am however saying that we should have roughly equal expectations for FunnyJunk and YouTube to police their own content.

    • by Beerdood (1451859)
      Comparing the RIAA and Oatmeal isn't a terribly valid swap.. the other comments here already explain some stark differences between the two. A better comparison might be FunnyJunk and ThePirateBay - both sites contain material (pictures, movies, or music) that's copyrighted and make no or little attempt to remove infringing material. They both profit through the work of other people, and deprive the original creators of the profit. TPB gets a lot of love from slashdot and elsewhere, so why all the hate o
  • by Anonymous Coward

    As far as I can tell from this whole story, FunnyJunk "just" wants TheOatmeal to remove the negative talk about FunnyJunk from TheOatmeal and all sites under the owner's control, which - to an extent - I can understand.
    The problem I have with that, is that in order to make such a claim, one must first ensure one isn't infringing the creator's rights in the first place - regardless of users carrying responsibility or not... Which, as TheOatmeal's latest post has revealed, they did not check for. Afterwards,

  • by geekoid (135745) <dadinportland&yahoo,com> on Tuesday June 12, 2012 @11:10AM (#40295927) Homepage Journal

    when you bad mouth Edison.

  • This is exactly why SLAPP laws exist:

    "The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty, of course, is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, in

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