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back to article Menaced cartoonist raises $60,000 for copywrong

A popular internet cartoonist has been served a demand for $20,000 after he failed to use the DMCA to defend his rights. Website FunnyJunk republished several strips from The Oatmeal, a comic drawn by Matthew Inman, in a clear cut case of copyright infringement. But Inman is a creature of nerd web culture, where using the quick …

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Let's play DMCA

I don't know if the DMCA was involved but there were takedowns:

http://theoatmeal.com/blog/funnyjunk

The DMCA is a game, not a tool. Infringers will take down the offending content but create an environment where it instantly and legally re-appears. YouTube mastered this abuse as much as the RIAA and MPAA mastered their own abuses.

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Re: Let's play DMCA

From what I've read elsewhere, the DMCA wasn't involved

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.

The IP for funnyjunk.com appears to be located in Amsterdam, so yeah the DMCA would be less use than Andrew appears to suggest. Perhaps he hasn't realised that US laws don't apply worldwide?

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Re: Let's play DMCA

> Perhaps he hasn't realised that US laws don't apply worldwide?

I understand that is a common problem with Americans.

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Re: Let's play DMCA

The US recently said something along the lines of - .com and .net are American and thus American laws apply.

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Re: Let's play DMCA

He's British, so he doesn't even have that excuse.

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Trollface

Re: Let's play DMCA

Heheh... that was my comment on Slashdot.

One thing to note though with DMCA complaints is that the person filing it does not need to be in the US. Only the web host needs to be in the US (if you're looking at getting the material physically removed) or the search engine (if you are looking at getting it removed from the search results). Crucially, the operator of the infringing website does not have to be based in the US either.

So (for example), if you live in the UK and someone in some far-off country steals your intellectual property but hosts it in the US, then you can still file a takedown request

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FAIL

Re: Let's play DMCA

Many parts of the DMCA are not even constitutional in the US and the powers that be know it and have went to great lengths to make sure the Supreme Court doesn't have to go even more on the record for being the corporate whores they are.

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Black Helicopters

Re: I understand that is a common problem with Americans

Not all Americans; but especially those that are "in bed" with the MAFIAA and their "bought and paid for lackeys" at the DOJ.

I would just love the idea of some fourth world country demanding the extradition of some DOJ lackey for violating THEIR laws. Will it ever happen?? I seriously doubt it. Then again, who says that the good ole USA is the only country to employ `extraordinary rendition`.

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Anonymous Coward

'A popular internet cartoonist'

I have never heard of him/her before, by taking this action I have now heard of him/her

job done

(a quick takedown notice and accomplishment would mean no publicity)

I still haven't seen one of these 'popular' cartoons, and now I will actively avoid them (both authorised and otherwise)

W##nkers, all of them.

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Re: 'A popular internet cartoonist' ... Prat.

So you've only heard of the good stuff have you?

You should give this guy a try. He has some useful lessons in English. I bet he knows how many letters there are in W#nker.

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Re: 'A popular internet cartoonist'

So . . .

* You are unable to determine from the name of the artist his gender

* You assume that because you haven't heard of something, it's not popular

* You draw an equivalency between the content creator (who has, at last count, raised over $75,000 per charity to fight cancer and protect wildlife) and the person stealing the content

Tell me again who the wanker is?

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Re: 'A popular internet cartoonist'

Oh come on, you haven't? You must've seen at least the "What it means to be an Apple User", or the also popular one explaining why so many girls like Twilight.

Maybe not XKCD-popular, but some of his stuff is pretty known everywhere...

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I run several popular Web sites, which publish articles under a Creative Commons-like attribution license (folks are free to lift content from me provided they credit the source and offer a link back to the original).

It's astonishing how often folks will refuse to do even that; I constantly see material I've written posted on other sites, with no attribution or in some cases with someone else falsely claiming to have created it.

I've used DMCA takedown notices with ISPs of folks who refuse to properly credit the material after I've asked nicely, and I've found them to be pretty effective. In about 9 out of 10 cases, the copied material comes down and stays down.

Now, I'm sure that in some corners of nerd culture, that makes me a bad person; after all, we're all supposed to agree that the DMCA is pure evil, used for nothing but nefarious purposes by the Recording industry Ass. of America and their ilk. And, to be fair, sometimes that is true. But folks seem to forget that copyright is about more than the RIAA and MPAA; it's a tool that helps protect little guys, too.

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@copyright is more than the RIAA

Its one of life's little ironies that the most rabid opponents of copyright are often a subset of the enthusiasts for the Stallman freedoms, apparently blissfully unaware that copyright is all that makes the GPL possible, especially the redistribution restrictions, as RMS would doubtless tell them if they didn't have their hands over their ears...

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Re: @copyright is more than the RIAA

Any rabid opponents of copyright in the house?

From what I've seen, most of the posters here don't oppose copyright. Many oppose the ludicrous lengths of copyright terms and/or the aggressive, due-process-circumventing actions of the music and film industries and/or the (totally expected) misapplication of the DMCA to things such as garage-door openers.

When corporate interests override the original intent of copyright to the detriment of those the law is supposed to protect, then people tend to get angry and inclined to take the law into their own hands. The copyright lobby have mostly themselves to blame for this.

The whole "intellectual property" system rather stinks. It is seen as a mega-corp tool to stamp on competition, not as a way of rewarding innovation, whatever the reality may be. Again, misuse of a tool has led to unwarranted disrepute being brought on the whole concept.

When those involved in GPL copyright violations are detected there is generally a specific response and an attempt to gently bring the offender back into compliance. Compare this with the nastygrams sent out to all and sundry by the "IP" lawyers demanding payment without particular evidence of wrong-doing or of the identity of the person involved, most of which goes back to the lawyers rather than those wronged and you might see why there is a difference in attitude.

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Mushroom

Arse Technica?

Freudian slip?

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So which is it, Andrew? Is the DMCA the perfect tool for small, underfinanced copyright holders to assert their rights or life-sapping game of whack-a-rat?

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(Written by Reg staff) Bronze badge

[no thought was supplied]

It's both. Useful for one-off cases, useless for persistent infringement.

Do you always have such difficulty holding two thoughts at once?

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Re: [no thought was supplied]

Holding two thoughts at once, that doesn't fit with your Randian dystopia Oswald.

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Big Brother

Randian?

Orwell put a name of that, not Alissa Rosenbaum.

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Coat

Oh, dear

'Arse Technica'? I take it you don't think much of Ars Technica then?

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"Google encourages this by using intimidation: on receiving a DMCA takedown it complies but publishes the complaint, exposing the requester to the Anonymous hate-mob.

(Google claims to do this "in accordance with the Digital Millennium Copyright Act (DMCA)" - an outright lie.)"

God forbid the public actually be aware that a copy write holder demands a DMCA take down. As a corporatist, I believe all corporations should be entitled to rule from the shadows, and the public should not be entitled to learn any aspect of their PUBLIC actions.

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The problem with Google's link to the takedown notice is that they remove the infringing link from the search engine results, and then have the explanation that links to the takedown notice. The takedown notice contains not only the complainant (who is thus open to abuse / pressure for asserting his/her rights), but also the infringing link (if the infringing material was on a third-party server ). So anyone looking for illegal downloads of copyrighted materials just clicks on the link to the takedown notice, and then copies the link he is looking for from the takedown notice. Nothing changes except infringers have one extra click to do

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Pint

thanks James

I had never read one that closely.

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Go

That strikes me as potentially failing to comply with the DMCA - if you can still get to the link through a Google search, then it could be argued they have obfuscated it instead of taking it down. (Even though the link is now hosted by another organisation, this is with the admitted help of Google.)

On a related slightly pedantic note, who holds the copyright on a (theoretical) DMCA form I have filled out? Could I send another DMCA notice to Google to stop them linking to my DMCA notice?

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Anonymous Coward

DMCA?

That's something to do with 5% of the world's population, isn't it?

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Facepalm

Arse Technica

Oh very good. I see what you did there.

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Anonymous Coward

I don't feel bad for "The Oatmeal" at all. Somehow.

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This is the magical DMCA that has jurisdiction over the Netherlands now then?

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Y'all need to re-read Inmans' own version of events properly. FunnyJunk removed hundreds of his comics and cartoons after he objected, and the whole thing more or less died down until this lawyer stuck his nose in.

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You missed these bits

1) It's now at least $120k

2) The link to the site/page concerned must have been accidently deleted... these things happen. http://theoatmeal.com/blog/funnyjunk_letter

3) Whilst deriding him for a host of failings, you also said "sending out the takedowns becomes a full-time job." This is exactly why he has taken the path he has. Read the original.

Happy to help.

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Duly emboldened, the infringing website thumbed its nose at Inman. It refused to take down the strips, insulted him, and even upped the stakes with a defamation suit against him, claiming $20,000 in damages.

You seem to be more concerned with the fact that he didn't use the DMCA than with the actions of FunnyJunk. Yeah, he should have used the DMCA but I think you're missing the story in an attempt to make a different point.

It's pretty shitty of them really, especially if the strips were used without permission. If there's any chance that they were in the wrong it's not a case they're likely to win - you'd expect he can prove he owns it, and convince a court he didn't give permission for use. Even if they are in the right (and from the little you've written, it looks like they aren't) it's piss poor treatment.

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(Written by Reg staff) Bronze badge

"You seem to be more concerned with the fact that he didn't use the DMCA than with the actions of FunnyJunk"

You seem to be trolling.

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WTF?

"You seem to be trolling"?

Paging Mr Pott and Mr Kettle-Black...

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You seem to be trolling

Much as I enjoy winding people up, in this case no.

You give one fleeting (and incomplete) mention to the actions of FunnyJunk. Having done some more reading, it would appear that FJ is in the wrong, at that the Admin is just trying his luck.

But then, I guess the point of the article was to show that copyright users can always use the DMCA (even when they can't) so the actual circumstances were more of a substory than anything.

if I'd been trolling, I'd probably have said something more explicit and in keeping with the copyright mantra of big business, perhaps involving Oatmeal suing the users of FunnyJunk because it's obviously too hard to get the FJ Admin to comply.

In all seriousness, though, the DMCA is an American law which only has effect inside American jurisdiction. The FJ server is in the Netherlands, so it's highly unlikely the host would worry about the request. The admin of FJ quite clearly wouldn't have given a takedown any credence whatsoever.

It shouldn't matter whether a takedown is issued according to the DMCA or is simply a polite email saying "that's my work, and you don't have permission. Please take it down", a site Admin should respond the same way in either case. Not to mention that, if we want to be really picky, having received the latter the Admin is then aware of the infringement. Under the DMCA they become liable, so it's really in their interest to take the content down however they are notified.

For more constructive dialog, perhaps someone could enlighten me on the following;

0) Content goes up

1) CH notifies the admin, who takes it down (eventually)

2) New content goes up

Is there any element of 'due diligence' required? I.e. if you've had a complaint from a site, and it's easy to add a script to check for content from that site, is it expected that you at least take steps to try and prevent a repeat?

As much as sites like to blame the users (and to some extent it's their fault) in this case, the Admin of FJ has behaved pretty fucking poorly.

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Trollface

Re: "You seem to be trolling"?

But only one is being paid to sit under this particular bridge...

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@You seem to be trolling.

oh dear

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You also ignored that fact that FunnyJunk does not have a Registered Agent for processing DMCA notices, which is required by the DMCA process. Since FunnyJunk has not taken the steps necessary to be able to receive DMCA notices how is Inman supposed to have used the DMCA to request the removal of his content?

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Re: "You seem to be trolling"?

Mr. Pott's out for tea.

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Coat

Dear sir, you failed to mention that a link in your article is pointed towards a website that heavily features videos containing lesbians. I regret to inform you that I was unable to finish reading your article (however wonderful or spectacular your article may or may not have been) due to the fact of lesbians.

If in future you would care to mention, in bold, capitals, italics, marquee, comic sans and rainbow colour fonts (ahh, Netscape HTML editor...) that the following link contains lesbians, I will be sure to read the entire article before becoming distracted.

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Turn the gun on DCMA and others...

Simple.

Post a rate table on all your work and legitimate uses.

Any DCMA, company, lawyer or other flim flam people (congress, gov't, etc...)

$10,000,000.13.

That is ANY use.

ANY replication, on line, screen, paper, film, briefs (both underwear or, toilet paper legal)... Per use.

(The often make 40-100 duplicates a week of docs.)

No waivers, exceptions.

Jerk their chains...

They would enjoy discovery, when all you submit is in digital

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Anonymous Coward

US Law Worldwide

Pres Obama signed a law giving US Laws worldwide applicability so he could have used the DMCA if he had chosen to.

The problem is in that many other countries give two fingers to this blatant interference in their country and its laws.

He should have looked at what law was applicable in the country where the images were hosted and used that. As a non American, I've had some success with using the DMCA to get stolen copyrighted images of mine removed but it is not always plain sailing.

But suing him back for defamation is really trying to take the biscuit.

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Cos people who use the DMCA never have any trouble

"A popular internet cartoonist has been served a demand for $20,000 after he failed to use the DMCA to defend his rights."

Right, because people who _do_ use the DMCA to defend their rights never have any trouble with crazy people threatening to sue the- oh wait. http://yro.slashdot.org/story/12/06/03/0132236/copyright-infringer-tries-to-shut-down-reporting-on-her-infringement

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FAIL

Okay, lets ignore the fact for now that a DMCA takedown is only effective if the site that receives it takes its responsibilities to content creators seriously and does more than merely pay lip-service to the law by removing the content in question only to allow it to be reuploaded and do nothing about that until the next DMCA takedown comes in, turning the whole process into a game of legal whack-a-mole.

You are aware that the DMCA doesn't apply outside of US jurisdiction, right? If the ISP is located in, say the Netherlands, then it's just a piece of paper that they can ignore with impunity.

There are plenty of sites out there that rely on the above facts to profit from other people's work. Ebaum's World springs to mind. http://www.albinoblacksheep.com/flash/ebaumsworld

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there is a way around that

There is usually a way around that, though it takes a bit of ingenuity. It's quite rare for _nobody_ in a given site's hosting chain - the direct operator, the hosting provider, the DNS provider, or the domain registrar - to be based in the U.S. If any one of them is based in the U.S., you can try sending that single member of the chain a DMCA takedown notice. I've heard of several cases where this was done successfully - sending a DMCA notice to the domain registrar rather than the hosting company, for instance. Any one of those entities can effectively take down the site.

The counterpoint to this is if you don't want your own domain to be vulnerable to DMCA abuse, make damn sure nothing in your hosting chain is in the U.S.

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FAIL

*sigh* I was really hoping when the register finally managed to pick this story up - that they might actually do basic research first.

Matthew has been fighting with FunnyJunk for years - they ignore him. The lawyer claims that FunnyJunk acts on takedown notices which is complete bollocks. He's been arguing for at least 3 years and they have done nothing - but after he posted the blog post last night - every single instance of his work has been taken down from FunnyJunk - it took about 5 minutes for hundreds of pages of his work to vanish off the site - note - they didn't remove it before sending the letter or after sending the letter - but only when he posted his blog post pointing out every instance of copyright infringement they have committed. Clearly rather that reporting this story from an unbiased viewpoint - the author has waged in believing he knows the entire story and has done no research at all. We can all do that - you must be an Apple fan because you are an idiot - see - easy......

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Basic Research. It's Great.

What this article also doesn't mention is the fact that FunnyJunk are suing for defamation and false advertising on the grounds that he has previously pointed out that they are stealing his work, which involves including the name 'FunnyJunk' on his web site. They claim that as a result of this, Google searches for 'FunnyJunk' return results for theoatmeal.com first, which, rather than being due to The Oatmeal being vastly more popular than FunnyJunk, are some sort of deliberate and Machiavellian plot.

IMHO, lawyers like this should be publicly burned alive as a warning to others to not be such utter utter arseholes.

Ironically, now, searching for either 'Funnyjunk', and also the much more popular search for 'The Oatmeal' on Google, returns plenty of links about what an arsehole this lawyer is. I believe the term for this is 'Doing a Streisand'.

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FAIL

@Andrew Jones 2

You didn't count on Andrew Orlowski being the first one getting this story. The irony is that the problem *isn't* the DMCA. The real problem is that FunnyJunk is pulling off a frivolous lawsuit; that the site is using the demanded's content on its site is just adding insult to injury.

Its probably the real-world case of that urban legend where a robber sues the home owner because he got injured while breaking in to rob his house.

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Arse Technica

God, you're so funny. I can barely hold my sides in at this level of wit.

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Re: Arse Technica

You joined just to say that? Not the first time that .... ahem.... typo has appeared on El Reg. Doubt it'll be the last.

Personally I bundle it in with 'witticisms' such as trick cyclist, boffin etc. Think of it as a term of grudging endearment or something......

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