More Unfunny Junk
arstechnica.com
arstechnica.com
Reading all the comments on HN is such an emotional roller coaster for me. Prior to my current legal situation, I held many of the same view points that I read here; e.g., "A judge is going to throw this out of court! This is absurd!" I've heard this same sentiment over, and over, and over from friends and lawyers with regard to my case, but guess what? We're about 2.5 years in to litigation, and only a handful of allegations have been dismissed. Several personal allegations are still in the complaint (a complaint is a legal filing in civil cases), so I still face losing everything, depending on the outcome of a jury trial.
The reality is that judges frequently cannot "throw this out of court" because it's not within their power. Judges can only rule on the letter of the law, and civil law is written to give plaintiffs their day in court without much consideration for the accused (yes, I'm a bit biased here). It's disgusting to watch all this play out with other people involved, but it's gut wrenching when it's your $100k+ hard earned cash that has been spent fending off this type of bullshit.
If drawing and distributing a picture of someone in a negative fashion were a punishable offense, every political cartoonist in America would have been put on the chopping block long ago.
"Except for there is no law being broken here."
Sounds very black & white, doesn't it? The thing is, it doesn't matter. The actual determination of whether or not you've broken the law occurs very late in civil proceedings. A judge doesn't rule on whether or not you've broken the law, a jury does. The judge can only rule that the claim made against you does or doesn't past certain "tests". I can assure you that if a lawyer digs deep enough, he will find some circumstance under which these tests will pass and you will end up sued.
Of course, Carreon is representing himself in the matter, and we all know what they say about a lawyer who has himself for a client...
This does a lot to discourage nuisance lawsuits.
In the US defendants generally can't recoup costs unless the claim is declared a "frivolous lawsuit".
It's only pre-action at the moment, so there's a chance to still avoid full on action.
I'm well aware of how real and serious this is though. That it could bankrupt me if only the slightest thing goes wrong (for me).
This is when being a bootstrapped sole founder is no fun... there is no safety net, nothing to catch you. I can't even afford representation, so I'm representing myself (nightmare!). I'm spending more time reading and researching rather than coding.
What I've learned most of all, is that right and wrong don't really matter.
If it's going to go to court, if it involves a jury (the action I'm involved in definitely would)... then all bets are off.
And all the while life goes on hold and projects are put on pause.
From the outside everyone has their views and express them frequently. This is all detached and partisan though, the reality is that it really can bankrupt you, or takeaway your future, or drain your current assets and reserves. It demands being treated with respect even if you believe your position is sound and the case unfounded.
The hardest bit, as you rightly say, is the gut wrenching fear and stress. The way it affects your sleep. The way it's hard to work or relax because your thoughts are always on the legal action. It affects everything.
You should come to the Hacker News London meet-up and let me buy you a pint or twelve.
Legal Aid is available for a very limited few (the most needy - which I actually would've met the criteria for being on a Ramen wage) and only in certain circumstances. The action against me includes a claim of defamation and this precludes Legal Aid.
Pro bono is available, but generally comes with many restrictions. Example: Must live within this catchment area, or be a woman victim of abuse, etc.
Where pro bono isn't restricted I've found that the lawyers are over-loaded and unable to take on any more. I've contacted a number of lawyers, and with the kindest apologies they've had to decline but then recommend someone else. The recommendations have formed a large circular loop, I've tried them all.
There are legal clinics. Attending a CAB (Citizens Advice Bureau) will generally see you referred to one. By and large these are operated by local small solicitor firms. Some legal clinics are much better funded and organised.
I attended SWLAC (South Westminster Legal Advice Clinic). Which is sole-funded by a barrister who wishes to remain anonymous. Largely these clinics deal with housing issues and fairly simplistic cases for the most vulnerable. So when I presented my case to them for advice (how to respond, interpreting the law and whether I'd got it right), they were quite challenged by it. For an hour on a Tuesday evening it's perhaps beyond their scope though they did their best.
Home insurance policies sometimes include Legal Defence cover. So I tried mine, which does have that cover. However I found that this cover is only available for a limited range of actions against you, and again does not cover anything that includes defamation.
The action against me purposefully conflates 2 things together... my role as the operator of a web site, and my role as a user of my own service. The claimant has attempted to argue that my use of my own service somehow removes the defences afforded to the operator of a site and would make me liable for the statements made by others on the site. The third party comments being the ones which are claimed to be defamatory.
There is more to it than this (but not much more), but as it may go to action I limit what I will say publicly.
Employees remain liable for their own actions, though the corporation may also be liable for its employees actions. (See "detour and frolic" doctrine.)
Officers can be held liable for their decisions in running the corporation. However, officers are usually indemnified (by the corporation) for lawsuits against them if they were properly acting in their capacity as officers.
Investors can be held personally liable for any of the corporation's liabilities if the corporation is "undercapitalized", i.e., it does not hold sufficient liquidable assets or insurance to cover its current predicted exposure to the sum of its liabilities. This usually describes most S-Corps and smaller C-Corps, especially solely-owned corporations.
How do the little guys defend themselves against this garbage?
If you're smart, you figure out how much legal help you can afford. There is some help available pro-bono, some through legal clinics.
It's helpful to figure out what you feel that you should do, and what you actually need to do. Getting the other side to spin its wheels can be helpful, though for a morally motivated pro se opponent, this can be challenging (by "morally motivated", I mean an opponent who's motivated by their own moral outrage, not necessarily acting morally), as they are essentially gifting themselves their own legal services. Being prepared can be helpful, but that can cost.
Often you don't need to do too much, sometimes that's not the case. And law can very much be a war of attrition.
There are some countermeasures which can be taken, generally launching a countersuit, making disclosure demands, etc., though these also have their own costs, and if your opponent doesn't have deep pockets, they're not particularly effective and/or interesting to your own legal counsel (who after all is looking for their billable hours or 30% contingency).
A very good rule of thumb is not to do business with assholes (or marry one), though this won't cover you in all cases (e.g.: Oatmeal vs. FunnyJunk).
There are also personal liability policies available, though they can be expensive. On the positive side, they make your problem your insurance company's problem, and they may be motivated to respond effectively to shut down your opponent. More often these or other legal insurance policies will cost a fair bit up-front and pay for a small fraction of legal costs.
I'm not from money. I'm the son of factory worker and a stay and home mom who cleaned houses to help pay the bills. This whole ordeal is utterly terrifying. I (along with my other partners) bootstrapped our company on money earned and saved by working our assess off. I personally contributed over $60,0000 to start our company, and that money came from nothing. I earned it fixing computers and working on our startup in-between customers and at night.
The thing that keeps me going is anger. That's the only emotion that trumps my fear. I'm outraged at the absurdity of the allegations levied against me.
http://www.loweringthebar.net/2012/06/carreon-v-the-oatmeal....
Carreon did something quite interesting:
Carreon sues National Wildlife Federation and the American Cancer Society in order to give them all of the money collected in their name, preventing IndieGoGo to take 9% of the collected money and Inman to get any cent himself and to have a chance to decide how much to pay to which charity (claiming that Inman promised to pay only USD 20,000 to both). And of course to prevent him photographing with the collected money. :) Ground: the collection of the money over IndieGoGo wasn't done according to the law that regulates collection of charities.
Moreover, Carreon claims that he himself paid to the campaign(!) and wants to protect the charities and all contributors who assume that charities get everything that was paid.
Cool. It doesn't look like he didn't think about the suit.
Oh, I don't know, the $20,000 'offer' which is tantamount to extortion?
Reading the offending piece on theoatmeal.com it appears the mother mentioned is that of FunnyJunk owner rather than Carreon.
The leading text before the claimed offence:
>"You want ME to pay YOU $20,000 for hosting MY unlicensed comics on YOUR shitty website for the past 3 years?"
Considering the cheque was to be made payable to FunnyJunk (as requested in the letter), and as Carreon does not own the "shitty website" it unlikely the image depicts his mother at all but that of FunnyJunk's owner(s).
You could argue that the whole blog post is addressed to FunnyJunk, not Carreon.
:s/You could argue that//
:s/Carreon/Carrion/g
1. http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=83602...
2. http://www.ramblingbeachcat.com/2012/06/not-backing-down-ram...
http://www.techdirt.com/articles/20120618/00025519366/charle...
Ohhh man, that's gold.
1. Indiegogo is incorporated in California.
2. It appears that under Californian state law that to collect money for a charity you must register to do so.
3. The charities were informed of the fundraising efforts, and as no paperwork had been filed they have the authority to shutdown the fundraising efforts.
4. The charities have refused to do so, therefore for some reason they are liable for the campaign.
(Reasoning taken from here: http://www.ramblingbeachcat.com/2012/06/not-backing-down-ram...)
But seriously, this guy is just trying to milk his 15 minutes.
It'll all be over soon. Nobody is going to end up doing anything, and the parties involved all get an increase in notoriety.
It's like a mutual troll, and the joke is on anyone who buys into this jersey shore type hype.
Except that something has happened, as the lawyer has filed lawsuits.
The idea that litigation is just something that happens is ridiculous. It's a time consuming, expensive and often very painful process for the accused, innocent or not.
he's being milked though, it's been a long time since I thought the term "lulzcow" applied to somebody and it applies fully to Carreon. Though it's not funny for Inman it's rather entertaining to see Carreon keep digging.
In reading his remarks, he is obviously thoughtful, well read, and genuinely believes himself. But, there seems to be a stark contrast between what is going on in his head and the "real" world. Regardless, this is the online equivalent to trashy reality T.V. and I can not seem to tear my attention away.
[edit: fixed typo]
If there is a lesson in this, it is that some humility goes a long way. In his furious stupor with FunnyJunk he attacked their lawyer as well.
Inman has really screwed up. The personal attack against Carreon was an over reaction and largely unnecessary.
An over reaction can be justified by stress, but it is not excused. And in this situation, Inman is going to be held accountable for his actions.
I agree. I hope he gets what's coming to him for raising over $100k in charitable donations.
If not, then the lawyer has no one to blame for the harassment he has earned, other than the individual harassers themselves.
And if we're talking about rational, appropriate reactions: the right reaction for Carreon is to apologize for what he did. It's the first step in reconciliation and it's normal human behavior. Carreon apologizes and comes to an understanding with Inman, who tells everyone about it and the outrage cools off.
Carreon's reaction isn't rational, it's calculating and vengeful and probably greedy. The harassment is unfortunate and where illegal, it's appropriate to punish. But that's not what he's doing.
Seriously? Am I suddenly living in a world in which people can be 'held accountable' for drawing a picture of someone's mom seducing a Kodiak bear? When did this happen?
Besides, nothing in Inman's blog post indicates the attack to be directed against Carreon, he just assumed it was. In fact, seeing as he uses phrases like "your website", it makes more sense to assume the attack is against FunnyJunk and/or its owners.
Because you think that a picture is slander. A picture is libel, which is a related but separate concept. Both slander and libel involve defamatory statements, but slander is restricted to transitory (i.e., spoken) statements whereas libel refers to published (i.e, written or drawn) statements. Video is either libel or slander depending on how the defamatory statements are presented .
Now I might be wrong but that's the impression I have had for years.
Where I'm a little hazy is in my reading of 17 USC § 411(c) - I believe that you can only sue for copyright infringement within 3 months of the work being "first transmitted" (which I assume also includes publication), and 48 hours after the work has been "transmitted".
Not sure if there is some other part of the U.S. Code that applies though.
I'm not a lawyer, but I don't think 411c applies in this case. That subsection refers to works whose transmission and fixation are simultaneous, which I believe is specific to live broadcasts and performances. I'm not entirely clear on how all of the timing language there is supposed to work, but I don't think any of it applies to webcomics anyway.
What would apply, however, is section 412 below that, which basically says what I outlined above; if you want to sue for anything beyond actual proved damages, you have to have registered either before the infringement, or within 3 months of creating the work.
"Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. "
Copyright is automatic, but the right to actually litigate a copyright is dependent on manually registering a work. If you register prior to infringement, you are eligible for very generous "statutory damages", which are roughly $100k per act of infringement. If you register after the infringement, you are only eligible for the actual damages (i.e., lost sales or the defendant's ill-gotten earnings from the infringing uses) that you prove in court.
Copyright protects your articles, illustrations, posts, photographs, videos, and other works of creative expression from the time that they are fixed in a tangible medium of expression. It gives the creator of an original work exclusive rights to the work, for a limited time.
That is the true definition of copyright, the second you put pen to paper. You do not need to register with a copyright office.