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)

Exhibit K

Exhibit K

Funnyjunk Lawyer Charles Carreon Isn't Afraid of The Oatmeal...

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NEWS

Funnyjunk Lawyer Charles
Carreon Isn't Afraid of The
Oatmeal

for $20,000 as recompense for this
“defamation.” Instead, Matt Inman
sends him a letter explaining why
he’s not going to do that, raises more
than $140,000 for charity, and draws
a comic insinuating that Funnyjunk’s
collective mother would not be
entirely unhappy about making love
to a Kodiak bear. Charles Carreon
finds himself at the center of an
internet firestorm.
Attorney Charles Carreon (Photo
When I talked to Carreon last night,
credit: Wikipedia)
however, he didn’t seem the least bit
fazed by all the negative attention
he’s been getting throughout the internets, or even the more
aggressive incursions onto his Twitter account or WordPress site.
In fact, he seemed excited about this bizarre new world he had
stumbled into. For him, the Funnyjunk stuff is old news – this is
about himself, Matt Inman, and the great wide internet.

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I'm a freelance writer whose work has appeared in
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games, video games, technology and that whole gray
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The author is a Forbes contributor. The opinions expressed
are those of the writer.

DA VE TH IE R’ S P OP U LA R P OSTS

651

In his 20 years as a lawyer, he says, he’s written hundreds of letters like the
one he sent Inman, but the response to this one was unique.

Funnyjunk's
Lawyer Accuses
The Oatmeal of
Instigating Attacks

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The story so far: Matt Inman, AKA The Oatmeal, complains about
Funnyjunk.com using his comics without permission. Intellectual
property lawyer Charles Carreon sends him a letter asking

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T EC H | 6/15/2012 @ 11:43AM | 88,706 views

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People

“So someone takes one of my letters and takes it
apart. That doesn’t mean you can just declare netwar,
that doesn’t mean you can encourage people to hack
my website, to brute force my WordPress installation
so I have to change my password. You can’t
encourage people to violate my trademark and
violate my twitter name and associate me with

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Funnyjunk Lawyer Charles Carreon Isn't Afraid of
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M O RE FRO M DA VE TH IE R

Who Just Made a Billion Dollars?

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fight with every ounce of force in this 5’11 180 pound
frame against it. I’ve got the energy, and I’ve got the
time.”
It’s a bold notion, saying that you’ve got as much time and energy as the
internet.

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He compares Inman’s charity campaign to when people would sell tickets to
throw balls at women being accused of witches in a dunking tank. Money for
charity is raised, of course, but the witches aren’t in on it. He may have a very
difficult time proving that Inman “instigated attacks,” as he said on his
website, but he’s certain he can find some legal recourse for what’s going on
right now – “California code is just so long, but there’s something in there
about this,” he says.
Carreon is mostly fascinated about plumbing the depths of internet rage, and
he’s diving in. He says he takes the time to respond to hate mail, but marvels
at the extent of the language people use.
“What I see is a world that is transforming before my eyes, and I’m very
fortunate to be at the forefront of a lot of technical development, and you
can’t learn anything being timid,” he says.
“My hero is Cyrano de Bergerac, and he said that he’d rather have an enemy
than kiss ass, just to sum it up,” he continued. “I welcome the opportunity to
confront legally the misuse of a new technology.”
This bizarre saga may be just beginning.
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another_reader 1 week ago

It appears Mr Carreon has just discovered the internet 10 years ago. It is amazing how out
of touch he is, and his choice of posturing in this manner digging in for a client he took on
who is clearly in the wrong. Props to him for sticking up for the client, although my
condolences for what this will do for his career to lose so gloriously for a misguided cause.
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TexasSwede 1 week ago

The interesting thing is that Charles Carreon himself is critical of how Youtube operates.
He posted in 2010 on his blog about how Youtube profit from having users upload
copyrighted content, and not policing it well enough. Basically the same as FunnyJunk
does, except that Youtube actually have plenty of original content as well.
Of course, as that information was published on some sites, Charles Carreon quickly took
down his blog. It is still cached by Google, though:
http://webcache.googleusercontent.com
/search?q=cache:z9UHSdTm6D4J:www.charlescarreon.com/notable-cyber-law-cases
/caveat-creator-dmca-google/2010/06/23
In case Charles Carreon try to get Google to delete that (for him very embarrassing) data
from the cache, here is the content. It is quoted under “fair use”, as critizism and for
commenting.
————————————————————Home / Charles’ Blog /Notable Cases / “Caveat Creator,” The DMCA According to Google
June 23, 2010
All Google Needed Was An Effective Takedown System to Reach the Safe Harbor
In granting summary judgment against Viacom on the grounds that Google was a
legitimate Online Service Provider with an effective takedown system, and therefore
entitled to receive the benefit of the DMCA “Safe Harbor” under 17 USC 512(c), the
District Court cites copious amounts of legislative history establishing that without the
safe harbor, the Internet might not grow robustly. (Download PDF) 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

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job to find it and identify it by URL. The court said:
Mere knowledge of prevalence of such activity in general is not enough. That is consistent
with an area of the law devoted to protection of distinctive individual works, not of
libraries. To let knowledge of a generalized practice of infringement in the industry, or of
a proclivity of users to post infringing materials, impose responsibility on service
providers to discover which of their users’ postings infringe a copyright would contravene
the structure and operation of the DMCA.
YouTube Is DMCA-Friendly, Napster Was Not
The court also held that even though YouTube technology made it easy to infringe, that
didn’t make it like Grokster or Napster, because those were systems that were designed to
foment piracy. This is an interesting distinction, because creating a video bazaar where
everyone knows you can find stolen content doesn’t seem that different from creating a
file sharing system where everyone knows you can create stolen content, but it’s different
in one important way — Napster and Grokster never went around deleting content, and
had no mechanism that would allow a copyright holder to locate where the content was
and send a takedown notice. This really means that some technology is DMCA-friendly
(YouTube-style video communities) and some is not.
Ad Revenue From Tainted Traffic Is Pure
The court rejected the argument that Google should lose the DMCA safe harbor because it
was generating ad traffic by having a site that in general, contains a lot of infringing
content. This part of the opinion isn’t very satisfying. The court seems to be finessing the
issue when it says:
The safe harbor requires that the service provider “not receive a financial benefit directly
attributable to the infringing activity, in a case in which the service provider has the right
and ability to control such activity ” § 512(c) (1) (B). The “right and ability to control” the
activity requires knowledge of it, which must be item-specific.There may be arguments
whether revenues from advertising, applied equally to space regardless of whether its
contents are or are not infringing, are “directly attributable to” infringements, but in any
event the provider must know of the particular case before he can control it.
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. After all, the court admitted that Google was working the system:
From plaintiffs’ submissions on the motions, a jury could find that the defendants not
only were generally aware of, but welcomed, copyright-infringing material being placed
on their website. Such material was attractive to users, whose increased usage enhanced
defendants’ income from advertisements displayed on certain pages of the website, with
no discrimination between infringing and non-infringing content.
Let The Creator Beware
If Google can generate ad revenue by taking in every kind of content without distinction,
and make money on the infringing attractions, then Google can “work the float,” and
always have enough infringing content to keep its blood pressure up at the expense of
copyright holders. The only way that content owners can act proactively is by
implementing digital “fingerinting technology” through the “Claim Your Content” system
that Google uses as its only screening mechanism. Fingerprinting your content is not,
however, cheap. So what this opinion seems to announce is a doctrine of “Caveat
Creator,” let the creator beware.
Will The Real Free Speech Provider Please Stand Up?
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. Meanwhile, real free, nonprofit libraries that have
no advertising revenue, are discouraged from putting the works in their archives on the
Internet where scholars and researchers can use it for fair use purposes, because
publishers do not respect the fair use protections of 17 USC 107 (the Library Exemption
from copyright infringement liability). I am currently defending the American Buddha
Online Library against a suit from Penguin, and although I won on jurisdictional grounds
in New York District Court, Penguin appealed, and the Second Circuit court of appeals is
now asking the New York State Appeals Court to take a look at the issues and see if

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true freedom of speech on the Internet is getting suppressed by copyright lawsuits while
Google gets to keep minting money by working the DMCA like a money pump. Nice work
if you can get it.
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Don Lindell 1 week ago

It’s my opinion that Carreon thought the 20k would be an easy pick and did not anticipate
the response from The Oatmeal. Which is strange because The Oatmeal responded in the
same manner as two years ago and escalated the argument into the court of public
opinion.
The court of public opinion abides in the hearts of its members.
Anticipating it’s decisions is relatively straightforward if you understand the philosophy
driving their behavior.
In this case, Carreon bluffed and lost.
The question is wether he truly intends to double down, a strategy that has it’s own name:
The Streisand Effect.
You can’t beat the house, you can’t fight city hall, don’t poke the mask of the ol’ Lone
Ranger and you don’t piss off the internet.
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