Carreon v. Inman et al

Filing 24

DECLARATION of Matthew Inman in Opposition to 20 Ex Parte Application For Temporary Restraining Order and Order to Shaw Cause Re Preliminary Injunction filed byMatthew Inman. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 20 ) (Opsahl, Kurt) (Filed on 7/1/2012)

Download PDF
1 2 3 4 5 6 7 8 Kurt Opsahl (SBN 191303) Matthew Zimmerman (SBN 212423) Corynne McSherry (SBN 221504) ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 12 Venkat Balasubramani (SBN 189192) Focal PLLC 800 Fifth Avenue, Suite 4100 Seattle, WA 98104 Telephone: 206-529-4827 Facsimile: 206-260-3966 13 Attorneys for Defendant Matthew Inman 9 10 11 14 UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA 16 17 18 19 20 21 22 23 24 25 26 27 SAN FRANCISCO DIVISION CHARLES CARREON ) ) ) Plaintiff, ) ) v. ) ) MATTHEW INMAN, INDIEGOGO, INC., ) NATIONAL WILDLIFE FEDERATION, ) AND AMERICAN CANCER SOCIETY, ) and Does 1 – 100, ) Defendants, ) ) and ) ) KAMALA HARRIS, Attorney General of the) ) State of California, ) ) A Person To Be Joined If ) Feasible Under F.R.Civ.P. 19. ) Case No.: 12-cv-3112-EMC DECLARATION OF MATTHEW INMAN IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER Date: TBD Time: TBD Courtroom: 5 – 17th Floor Judge: Hon. Edward M. Chen 28 No.: 12-cv-3112-EMC INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER 1 I, Matthew Inman, declare under penalty of perjury as follows: 2 1. The facts contained in the following affidavit are known to me of my own personal 3 knowledge and if called upon to testify, I could and would competently do so. 4 BACKGROUND 5 2. I am the creator of The Oatmeal (, an online web-comic. 6 3. I created The Oatmeal in 2009 to feature my comics and writing. I remain the site’s 7 8 9 10 11 12 13 primary contributor. 4. The Oatmeal publishes, among other things, satirical and humorous cartoons on a variety of subjects, such as cats, grammar, food, animals and technology. The Oatmeal also covers topics that are of current public interest. 5. The comics are wholly created by me, and I am the owner of the copyrights in The Oatmeal’s contents. 6. Since its launch, The Oatmeal has been highly successful, attracting more than four 14 million unique visitors per month. I have also published several books and other items such as 15 calendars based on The Oatmeal. 16 7. The Oatmeal has been profiled by various media outlets, including for example, Time 17 Magazine’s “NewsFeed”: 5 Questions with Matthew Inman, the Brain (and Hand) Behind The 18 Oatmeal < 19 hand-behind-the-oatmeal/#ixzz1z6VpnArM> and Washington Post’s “Comic Riffs”: The ‘Riffs 20 Interview: 12 Secrets of the insanely viral ‘OATMEAL’ creator Matthew Inman < 21>. Time 22 Magazine named The Oatmeal one of its “Best Blogs of 2010” 23,28804,1999770_1999761_1999738,00.html 24 True and correct copies of these articles are attached as Exhibits A, B, and C. 25 8. The Oatmeal has also cited by media outlets, including for my take on current affairs. 26 For example, I published a comic about Netflix’s decision to rebrand and split its lines of business. 27 This was covered by CBS News’ “Tech Talk” blog: Netflix split explained by The Oatmeal with 28 this cute comic strip <>. A No.: 12-cv-3112-EMC 1 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER 1 2 true and correct copy of this article is attached as Exhibit D. 9. The Oatmeal also weighs in on issues affecting the Internet. For example, when 3 Congress considered passing the Stop Online Piracy Act (SOPA), I joined in many other websites 4 that protested SOPA because of its effect on the free-flow of information online. 5 10. Several media outlets that covered the SOPA protest noted my participation in it. See 6 for example, this Times of India article: Part of web goes dark in protest against anti-piracy bills < 7 8 pipa-jimmy-wales>. A true and correct copy of this article is attached as Exhibit E. 9 THE ORIGINAL BLOG POST ABOUT FUNNYJUNK 10 11. About a year ago, on May 25, 2011, I posted an article on The Oatmeal blog at 11, entitled What should I do about A true 12 and correct copy of this post is attached as Exhibit F. 13 12. In this post, I complained that users of the website FunnyJunk ( 14 had been copying comics I had posted on The Oatmeal, and uploading them to FunnyJunk without 15 crediting or linking back to my site. 16 13. This post highlighted the dilemma many content owners face. I understand that I could 17 have used the legal process to try to get my comics taken down from FunnyJunk but I decided to 18 highlight the issue at a more systemic level and also see whether I could get FunnyJunk to remove 19 my comics without resorting to the legal process. 20 14. While I knew I had the option of sending a cease and desist letter, I decided instead to 21 use my blog as a “bully pulpit” to criticize Funny Junk, its apparent business model, and that of 22 other “comic aggregation” sites. 23 24 25 26 27 28 15. The initial blog post about FunnyJunk led to an indirect response from FunnyJunk’s administrator, who took down some (but not all) of my comics. 16. I decided not to pursue the matter further. THE CEASE AND DESIST LETTER FROM CHARLES CARREON 17. Nearly a year later, on June 3, 2012, I received a cease and desist letter, written by Charles Carreon in his capacity as an attorney for FunnyJunk. A true and correct copy of this letter No.: 12-cv-3112-EMC 2 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER 1 2 is attached as Exhibit G. 18. Although my contact information is widely available online, Mr. Carreon served a 3 copy of the letter on my personally, by sending a process server to my Seattle apartment in the 4 evening of Sunday, June 3, 2012. I believe that the personal service of the letter, with a process 5 server to knock on my door, was designed to intimidate me. 6 19. The letter claimed that by criticizing FunnyJunk for hosting my copyrighted comics 7 without authorization, credit or even a link back, I had defamed FunnyJunk and engaged in false 8 advertising under the Lanham Act. The letter demanded I remove all instances of FunnyJunk’s 9 name on my site, and pay FunnyJunk $20,000 by June 12, 2012 in order to avoid a lawsuit. 10 20. I believed that FunnyJunk’s demand letter was outrageous, and contained numerous 11 misstatements and illogical conclusions. I also believed that the purpose of the letter was to attempt 12 to threaten me into removing my negative comments about FunnyJunk with a baseless lawsuit. 13 14 21. At the time I received the letter, hundreds of copies of The Oatmeal comics were still on the FunnyJunk site, without authorization, credit or a link. 15 22. I decided that I would not comply with FunnyJunk’s demand. 16 23. Instead of acceding to the improper legal threat, I decided to use my comic forum to 17 criticize it, with a humorous and creative response. My attorney wrote a formal response to Mr. 18 Carreon on June 11, 2012. A true and correct copy of this letter is attached as Exhibit H. 19 24. From my point of view, the FunnyJunk demand letter represented a classic example of 20 the legal process being used in an improper and inefficient manner. I decided to highlight this, and 21 also to use this as an opportunity to raise money for charity. 22 THE BEARLOVE CAMPAIGN 23 25. On June 11, 2012, I republished an annotated version of the cease and desist letter on 24 The Oatmeal at A true and correct copy of this 25 response is attached as Exhibit I. 26 26. In the annotated version, I redacted Mr. Carreon’s address, telephone and fax number 27 out of respect for his personal privacy. I also annotated the letter by humorously pointing out its 28 factual inaccuracies and absurd conclusions. No.: 12-cv-3112-EMC 3 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER 1 27. My purpose was to use the public forum of The Oatmeal to criticize the cease and 2 desist letter, show that I would not be intimidated, and point out the flaws in the letter’s absurd 3 demands. While Mr. Carreon happened to be the one who sent the letter on behalf of FunnyJunk, 4 my focus was to highlight the absurdity of FunnyJunk’s position and its use of the legal process. 5 28. At the end of this blog post, I announced my intended response to the cease and 6 desist letter. My general plan was as follows: I would (1) encourage readers who agreed the 7 demand was frivolous to help me raise $20,000 in donations; (2) photograph the money collected; 8 (3) sending the photograph to Funny Junk with a comic; and (4) take the money and donate it to the 9 National Wildlife Federation and the American Cancer Society. I entitled the campaign “Operation 10 11 BearLove Good, Cancer Bad.” 29. The comic I plan to send is a satirical drawing of FunnyJunk’s mother seducing a 12 Kodiak bear. The comic is a humorous visual expression of my lack of intimidation and my 13 disdain and contempt for FunnyJunk’s threat of a frivolous lawsuit. 14 15 16 17 18 19 20 30. I used the website Indiegogo to organize my fund raising project. Indiegogo is a popular crowd funding website. ( 31. During the course of Operation BearLove Good, Cancer Bad, I provided updates to donors through Indiegogo’s built-in posting system. 32. Operation BearLove Good, Cancer Bad raised the original goal of $20,000 within 64 minutes. Many comments on the campaign page and elsewhere were very critical of Mr. Carreon. 33. I provided readers of The Oatmeal with an update on June 18, 2012, posted at 21 In that update I asked my readers to be lawful and civil in their 22 interactions with Mr. Carreon. A true and correct copy of this update is attached as Exhibit J. 23 34. During the time the campaign was running, Mr. Carreon made public statements to 24 the effect that he believed the campaign was improper and would try to put a stop to it. While he 25 never made his motivations totally clear, in one of the news articles, he intimates that he believed 26 the campaign’s method of poking fun at the demand letter was somehow improper. One news 27 report had the following summary of Mr. Carreon’s comments: 28 He compares Inman’s charity campaign to when people would sell tickets to throw balls at No.: 12-cv-3112-EMC 4 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER 1 women being accused of witches in a dunking tank. Money for charity is raised, of course, but the witches aren’t in on it. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See David Their: Funnyjunk Lawyer Charles Carreon Isn't Afraid of The Oatmeal, Forbes (June 15, 2012) <>. A true and correct copy of this article is attached as Exhibit K. 35. If a particular campaign reaches its goals, Indiegogo retains 4% of all money raised through its website. This was clearly understood by me from a review of the Indiegogo website. 36. Because the amount raised was so much larger than expected, I announced on the Indiegogo site during the course of the fundraiser that I was planning to divide the money among four charities instead of two. A true and correct copy of the Updates page is attached hereto as Exhibit L. 37. Eventually, I decided to divide the money between the original two charities. Accordingly, the funds I receive from the Indiegogo will not be disbursed to any entity except the American Cancer Society and the National Wildlife Federation. 38. I still plan on sending a photograph of the money along with the satirical comic to FunnyJunk. However, in order to avoid having this lawsuit interfere with my expression and to avoid jeopardizing the funds from the campaign in any way, I withdrew funds from my own personal account and photographed those funds. THE FINAL NUMBERS FOR THE CAMPAIGN AND DISPOSITION OF THE FUNDS 39. Operation BearLove Good, Cancer Bad ended on June 25, 2012. The final amount of fund funds raised was $220,024.00. This is almost exactly 11 times the original goal of $20,000. Less the 4% retained by Indiegogo ($8,000.96), and a 3% processing fee paid to third parties ($6600.72), the total money going to charity became $204,622.32. A true and correct copy of an email sent from Indiegogo to me detailing the amounts raised and deducted is attached hereto as Exhibit M. 40. Of this amount, Indiegogo held $95,675.68 and the remainder ($108,946.64) was with PayPal. With respect to the funds that were held by Indiegogo, I have requested that Indiegogo send checks in the amount of those funds (divided in equal parts) directly to the No.: 12-cv-3112-EMC 5 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER CERTIFICATE OF SERVICE 1 2 I hereby certify that on July 1, 2012, I electronically filed the foregoing document with the 3 Clerk of the Court, using the CM/ECF system, which will send notification of such filing to the 4 counsel of record in this matter who are registered on the CM/ECF system. 5 Executed on July 1, 2012, in San Francisco, California. 6 /s/ Kurt Opsahl Kurt Opsahl 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No.: 12-cv-3112-EMC 1 INMAN DECL. IN OPPOSITION TO PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?