[Update: In what can only be described as self-immolation, FunnyJunk’s lawyer, Charles Carreon, has sued The Oatmeal, Indiegogo, the National Wildlife Fund, and the American Cancer Society claiming the “BearLove” charity drive is not compliant with California law. He’s asked for control of the funds plus attorney’s fees. He also raises meritless Lanham Act and computer hacking claims. Popehat has the details on Carreon’s lawsuit.]

I love writing about lawsuits and I love reading The Oatmeal, so imagine my joy when I heard that The Oatmeal was threatened with “a federal lawsuit!” Hooray! Unfortunately, I doubt it’s as much fun for everyone else, and deep down the case 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.

The Oatmeal (nom de plume for Matthew Inman) writes and draws original comics. FunnyJunk is a user-driven humor site where users post primarily pictures, some of which are entirely original, some of which are taken from other sources and then modified, and some of which are simply copied. A year ago, The Oatmeal got tired of seeing all of his comics copied there, without any attribution, and so he posted a blog post ranting about FunnyJunk:

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

  • Gather funny pictures from around the internet
  • Host them on FunnyJunk.com
  • Slather them in advertising
  • If someone claims copyright infringement, throw your hands up in the air and exclaim “It was our users who uploaded your photos! We had nothing to do with it! We’re innocent!”
  • Cash six-figure advertising checks from other artists’ stolen material

Nate Anderson at Wired covered the whole thing. As best I can tell, it ended with most, but not all, of The Oatmeal’s works being removed, and The Oatmeal giving up on the rest. This is how a lot of pre-litigation disputes end: a big, messy spat followed by a partial resolution to avoid litigation. Litigation is expensive and burdensome.

Then earlier this week FunnyJunk, through their lawyer Charles Carreon, served Matthew Inman with a threatening letter demanding he remove any mention of FunnyJunk from his website and pay FunnyJunk $20,000.

If you haven’t seen it, do read The Oatmeal’s hilarious response to FunnyJunk. It seems he’s already raised $60,000 for “bearlove” and cancer prevention.

Let’s review the actual allegations. Here’s the key part of FunnyJunk’s demand letter:

In short, FunnyJunk alleges The Oatmeal defamed it by accusing it of willful — and thus potentially criminal — copyright infringement, and claims the allegedly false statements about FunnyJunk constitute false advertising in violation of the Lanham Act.

One thing to get straight from the get-go: The Oatmeal’s response to the threatening letter linked to dozens of pages that purportedly continued to host The Oatmeal comics. (The ones I checked were broken links, but that may have been FunnyJunk taking them down.) I thus assume that, when The Oatmeal published the statements in question, and continuing until today, FunnyJunk has hosted unauthorized copies of The Oatmeal comic strips. It is likely that this fact alone will result in an immediate dismissal of any lawsuit against The Oatmeal, because the key allegedly defamatory fact — that FunnyJunk was infringing on The Oatmeal’s copyright — is in fact true, and truth is an absolute defense to defamation, libel and slander. Many courts will simply not care if FunnyJunk claims it acted in a timely fashion in response to every DMCA request it received, because those courts will assume that the essential facts asserted by The Oatmeal are substantially true, and thus there’s no way FunnyJunk can prove The Oatmeal defamed it or falsely advertised in violation of the Lanham Act.

But let’s assume for a moment that FunnyJunk’s indisputable hosting of some (potentially many) The Oatmeal comics isn’t by itself enough to get the case dismissed — if that’s the situation, does FunnyJunk have a case?  Reading the FunnyJunk letter closely, I think their argument is that The Oatmeal claimed not just that FunnyJunk hosted infringing material (as is commonplace on any site with user-generated content), but that the infringement was intentional. To some extent it’s hair-splitting — and I’d bet most courts would call it a “hyper-technical” interpretation, and would not want to miss the forest (FunnyJunk was indeed hosting infringing content, as The Oatmeal alleged) for the trees (FunnyJunk claims it wasn’t doing that intentionally) — but it’s a distinction worth considering.

Let’s start with the Lanham Act. FunnyJunk’s letter includes a typo, there is no “15 USC 1125(a)(B),” but there is a “15 USC 1125(a)(1)(B),” which prohibits people from “misrepresent[ing] the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” I’m not sure how that could possibly apply here, and the letter gives no indication. It’s indisputable that FunnyJunk was indeed hosting some of The Oatmeal’s comics; what more “nature, characteristics [or] qualities” are described?

Next up is defamation. There are some vague references online to the owner of FunnyJunk living in New York, and Inman himself lives in Seattle, Washington, so there’s already a question of which state’s laws apply. New York courts are not particularly keen on extending jurisdiction to allegedly defamatory claims on out-of-state websites. SPCA of Upstate N.Y., Inc. v. Am. Working Collie Assn., 18 N.Y.3d 400 (N.Y. 2012)(New York must have a “substantial relationship” with the activities of the website and the pending claim); Rescuecom Corp. v. Hyams, 477 F. Supp. 2d 522, 530 (N.D.N.Y. 2006) (“the fact that the subject of the allegedly defamatory online postings is located in New York does not support New York jurisdiction”). So FunnyJunk probably has to sue The Oatmeal in Washington.

Washington is just as protective of the First Amendment as every other state (Citizen Media Law sums up Washington’s laws), and so defamation is generally quite hard to prove, requiring proof of “(1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages.” Maison de France, Ltd. v. Mais Oui!, Inc., 108 P. 3d 787 (Wash. Ct. App. 2005). “Unprivileged” is irrelevant here, that’s for statements made in court or for medical treatment, et cetera. We’re also assuming, for this analysis, that FunnyJunk can prove it did not intentionally host infringing copies of The Oatmeal, which would satisfy “falsity.” If they can’t prove that, any lawsuit would be frivolous.

Thus, assuming FunnyJunk can prove they didn’t intentionally infringe on The Oatmeal’s works, they still have to prove “fault” and “damages.”

Let’s start with “damages.” The FunnyJunk letter essentially admits they won’t be able to prove any actual financial damages arising from The Oatmeal’s statements, which means they’re going to have to prove the statements were a special type of truly inflammatory defamation, called “defamation per se,” for which damages are presumed, both under First Amendment law and under Washington State law. See Maison de France, Ltd., supra (“We hold that under Dun & Bradstreet [Inc., v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)], where no matters of public concern are involved, presumed damages to a private plaintiff for defamation without proof of actual malice may be available”).

There is one, just one, case I know of in the country that has said, in a footnote, that alleging someone willfully infringed a copyright might constitute defamation. Smith v. Summit Entertainment LLC, No. 3:11CV348, U.S.D.C. N.D. Ohio (June 6, 2011)(“a false claim that an artistic work infringes another’s copyright might be defamatory per se“). But I’m skeptical that this argument is going to go anywhere, because willful infringement is a blurry concept in the law, making The Oatmeal’s statements susceptible to multiple meanings.

Consider the Viacom v. Youtube opinion from earlier this year, which drew concepts from vicarious liability to apply a “right and ability to control” analysis to Youtube’s handling of user-generated content. Recall that Viacom lost at every step of the five-year case until that Second Circuit opinion earlier this year — were Viacom’s prior allegations in the press about YouTube defamatory? Or consider the Grokster case which, as Lawrence Lessig explained, imposed the same standards of liability on a party that merely “induced” infringement as if they had willfully infringed it themselves — does that make an accusation of inducing infringement, as is made all the time against BitTorrent, defamatory? How can it be defamation per se to allege something that’s at best a blurry concept in the law, subject to multiple meanings, some of which are potentially defamatory, others not? I submit that it’s not.

Then there’s the question of “fault.” Notably, Washington courts are quite prone to call plaintiffs “limited-purpose public figures” if the plaintiff drew themselves into the discussion, as FunnyJunk quite plainly did a year ago (see the Wired article), and so they’re going to have to prove “actual malice” to win.

Again, we’re assuming for this analysis that FunnyJunk can prove it did not intentionally  infringe upon The Oatmeal’s comics, even if it indisputably continued to host The Oatmeal’s comics in various locations. If you haven’t noticed, The Oatmeal is a funny, satirical site that tends to exaggerate for effect. Open up the source code and you are greeted by a full-page Pterodactyl launching expletives at you in ALL-CAPS. As the Washington Court of Appeals has said, however, when humor is involved, even “actual malice” is too low a bar, and the plaintiff has to prove even more:

When, however, the allegedly defamatory expression at issue is satire, humor, or fiction, this [actual malice] standard cannot be used since in any such work, it is likely the author did not intend the work to be completely truthful. Thus, a different standard has been developed for determining malice in these situations, namely: whether the author intended, or recklessly failed to anticipate, that readers would construe the publication as a statement of defamatory facts.

Hoppe v. Hearst Corporation, 770 P.2d 203 (Wash. Ct. App. 1989). Consider The People v. Larry Flynt, which was actually Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), in which Hustler magazine posted a blatantly false “interview” with Jerry Falwell in which he described drunkenly losing his virginity to his own mother in an outhouse. (For example, “INTERVIEWER: But your mom? Isn’t that a bit odd? FALWELL: I don’t think so. Looks don’t mean that much to me in a woman.”)

To prove The Oatmeal was at fault, FunnyJunk needs to prove that The Oatmeal “intended, or recklessly failed to anticipate, that readers would construe” FunnyJunk as intentionally hosting The Oatmeal’s comics without attribution, and that The Oatmeal did so maliciously. Notice carefully what The Oatmeal said in the original post:

I first contacted them about a year ago after I found a handful of my comics uploaded on their site with no credit or link back to me. They took down the offending images, but since then they’ve practically stolen my entire website and mirrored it on FunnyJunk …

Notice the concession that FunnyJunk pulled down early pages, and the hyperbole about “my entire website.” Would a reasonable reader construe this as a statement of anything more than the basic situation, i.e. that FunnyJunk was indisputably failing to catch and to remove The Oatmeal’s images? It’s certainly colorful, accusatory language — but it also says no facts beyond what any reader could easily ascertain, i.e. that the site contained many of The Oatmeal’s original images.

Of course, the likely truth is that FunnyJunk is, like Demi Moore in her foolish past, trying to bully someone into taking something off the internet. Something tells me this particular attempt won’t work, but it’s possible other infringers may use it in the future against content creators.

[Update: The Oatmeal retained Venkat Balasubramani, who has posted his response letter. Unsurprisingly, Venkat’s letter is quite persuasive.]