Monday, June 18, 2012

Charles Carreon v. The Intartubes (aka Charles Carreon v. Matthew Inman, et. al. CV 12-3112)

Fans of The Oatmeal are already in the know -- someone is wrong on the Internet. In this case, the person who is wrong is one Charles Carreon, Esq. You may be wondering, why is this attorney wrong? This attorney is wrong for more than using "Esq" as a title. (I personally think it's a bit incorrect, in particular given its usage in British English-speaking countries.) I will now give a big H/T to Popehat, Lowering The Bar, and Simple Justice


Here's some background for those of you who aren't obsessed with legal slapfights. Mr. Carreon represents a website called FunnyJunk.com. It is not a site that displays images of disfigured schlongs. It is a site that lets users upload junk that is ostensibly funny. The Oatmeal (aka Matthew Inman) wrote a blog post last year that discussed FunnyJunk.com's use of his comics on its website. He felt that the public shaming would be more effective than a DMCA takedown letter. Flash forward to earlier this month. Inman receives a demand letter from Mr. Carreon. Mr. Carreon demanded that Inman pay his client $20,000.00 or face the wrath of a lawsuit. The basis for said lawsuit? Defamation of trademark and other garbage. Inman's attorney wrote a kickass letter describing, in plain terms, how a lawsuit would be ill-advised and a bad idea. Inman, in his capacity as The Oatmeal, wrote this awesome blog post. He proposed that instead he would, among other things, raise $20,000.00 and donate it to the American Cancer Society (because cancer sucks) and the American Wildlife Federation (because bears are awesome). Clearly, Mr. Carreon was rather upset that someone would not be intimidated by his demand letter. He filed a lawsuit in the Federal District Court for the Northern District of California. 


Here is how he is wrong. 


First and foremost, you don't sue the American Cancer Society. Mr. Carreon did just that. He's also suing the American Wildlife Federation and IndieGoGo.com, a site that allows people to fundraise for charity, &c. That said, his complaint does seek to impose a charitable trust upon the funds raised by Matthew Inman (aka The Oatmeal) that would disburse the entirety of the funds 50-50 between both charities. The thing is that he's going about it in the most pants-on-head stupid manner humanly possible. 


You may be asking yourself, why are you calling this guy "Mr. Carreon" if he is apparently such a total knob as to warrant a blog post? The answer: apparently Mr. Carreon has registered his name as a trademark. Since he is alleging counts pursuant to the Lanham Act (for non-lawyers, this is the trademark statute), I'd rather not find myself subject to a nuisance lawsuit from this alleged douche canoe. See what I did there? Us lawyers call this "hedging."


Thanks to the good folks at Lowering The Bar, I got my hot little hands on a copy of the complaint. This saved some money on the cost of nabbing it from PACER. By the way, anyone can get a PACER account. Federal court filings are public record. This is key later. 


So, let's take a look at the complaint. 


It starts off with the usual crap. "Hey, federal court, here's how you have jurisdiction. Here's who is being sued, etc." That covers the first few pages of the complaint. Those of us who draft these things look at this as the kludgy boring chunk where you have to do your homework. In this section, there's not much to talk about beyond some possible sniping based on grammar and the use of Times New Roman. 


You may be wondering, why is this guy suing a shitload of female deer? In legal parlance, "Does" are individuals who are not yet known, but whose identities may be ascertained later in the case. Mr. Carreon purports to be suing 100 Bambi-moms. My guess is that many of these folks are better described as "Goons," but the legal community has yet to formally codify the denizens of the SomethingAwful.com forums. 


The complaint then drifts into a description of the purpose behind California's laws governing charitable contributions. Other legal bloggers are abstaining from tipping off Mr. Carreon as to how he is wrong. I did dig up the definition of "commercial fundraisers." Given that it is tossed into the middle of the bits that Mr. Carreon selectively cites (us lawyers call it creative redaction), I can't imagine that he missed it. Therefore, I do not feel bad that I am about to block quote it here. 


A commercial fundraiser for charitable purposes shall include any
person, association of persons, corporation, or other entity that
obtains a majority of its inventory for sale by the purchase,
receipt, or control for resale to the general public, of salvageable
personal property solicited by an organization qualified to solicit
donations pursuant to Section 148.3 of the Welfare and Institutions
Code. See Cal. Govt. Code Sec. 12599(a)(emphasis added)

A majority of The Oatmeal's inventory seems to consist of the shit he sells based upon the success of his comic, not based upon his desire to fund-raise for the ACS and the NWF. Keep in mind that his fund-raiser was in response to Mr. Carreon's demand letter. It's not as if this is the purpose of The Oatmeal.com or of IndieGoGo.com. 


Moreover, the point of this statute is to protect people from solicitation fraud. Solicitation fraud would be a situation where, for instance, my daughter and I go door-to-door soliciting for UNICEF, but instead spend the money on gelato and comics. We have never done this, but issues of The Walking Dead don't pay for themselves. 


But wait, the wrongness gets worse the further you go down the doucherabbit hole. 


Mr. Carreon seems to think that the First Amendment does not apply to the statements of commercial fundraisers for charitable purposes (even tho Inman is not one of them), and proceeds to describe how the Internet is a mean place where anonymity turns many into complete and utter cockwaffles. Here's the thing. It's completely O.K. to be a total asshat on the internet. Some people call it "satire" and "parody," but they're latte-sipping liburl elitists who don't understand the common man. 


The complaint references an interview with Inman wherein he states that his online persona is that of a "crass, bloated, obese, drunk monster." So, basically, most people on the Internet. It then goes on to reference the source code for every page on TheOatmeal.com, which includes the following: 




I AM A MOTHERFUCKING PTERODACTYL!
HERE TO PTERO-YOU A NEW ASSHOLE
 HTTP://PTERODACTYL.ME

I was unable to include the awesome ASCII art because I can't be bothered to figure out the Blogger code that allows me to post it without it being all jumbled and stuff. The complaint describes this bit of commented code as, "Inman, in his character as a carnivorous, prehistoric flying reptile that first rips the intestines out of a man's anus, then flogs him with his entrails . . . " Because, you know, The Oatmeal is written by a motherfucking pterodactyl. I am left to wonder how such a beast would type. Beak? Tiny wing hands? Feet? Farting in the general direction of the keyboard? It boggles the mind. Even a crass, bloated, obese, drunk monster would be challenged in this regard. 


In an attempt to justify the Doe counts, the complaint further states, "Inman's followers are by and large with [sic] technologically savvy young people eager to follow the latest trend, who embrace Inman's brutal ideology of "tearing you a new asshole." 


For those who don't know, [sic] is a passive-aggressive way of saying, "this guy just abused the English language." In this context, Mr. Carreon used, "with," in a very stupid, "I don't proof read" kind of way. 


He then goes on to describe how Inman drew a picture of his mom trying to seduce a Kodiak bear. It truly does not get any better than this, sports fans. The complaint also alleges that this whole "raise money for charity" campaign is really a front to make Mr. Carreon look bad. It seems as if he's doing a bang-up job of this on his own. 


For example, in paragraph 32 of the complaint, Inman's conduct is characterized as using the ACS and the AWF as a "'human shield' for his assault on Plaintiff and his client FJ." FunnyJunk.com is not a plaintiff in the case, so I am not entirely sure how FunnyJunk.com has an issue here unless it is owned by Mr. Carreon himself. A whois lookup indicates that the URL's registry was made anonymous via a proxy registrar in April of 2012, at the latest. The fact that FunnyJunk.com is not a plaintiff when it is clearly aggrieved by Inman's conduct is a bit odd. 


The complaint does not fail to reference, "Plaintiff and his client," so I am not quite sure why FunnyJunk.com is not a necessary party to the lawsuit. 


You may be wondering, how does all of this tie into the ACS and the AWF? Apparently, they have not publicly disavowed TheOatmeal's efforts. See Paragraph 33 of the complaint. 


After 12 pages of bloviating and legal business, we get to the heart of the complaint. On to the first claim for relief. 


The first claim seeks to impose a charitable trust against Inman and IndieGogo. The charitable trust purports to deny IndieGogo its 9% vig on the funds donated so far. So how does Mr. Carreon have standing (the legal right to sue) to assert this action against his erstwhile Defendants? He donated to the campaign. 


This may not be bad pool. There are people out there who make their living investing minimal amounts of money into a corporation, simply to bring a derivative lawsuit against the corp as a shareholder. While perfectly legal, the blogosphere has described some of these people as douchebags. It turns out that allegations of douchebaggery are quite common on the Intartubes. At very least, Carreon establishing standing by donating is questionable at best. 


In federal courts, standing is a threshold issue. If you lack standing, then your case goes poof. Ginning up standing, especially given the context of this lawsuit, could be problematic for Mr. Carreon. 


In particular, he relies on the initial blog post to demonstrate that Inman's stated intent is to only raise $20,000.00 for the charities. It then states that, "presumably [the parties are] splitting [the $20,000.00] between the two Charitable Defendants." See paragraph 37 of the complaint. As a donor, Mr. Carreon presumes that any funds past the $20k mark will be split between Inman and IndieGoGo. This reminds me of the U.S. Supreme Court cases that deny taxpayers standing to sue based on the use of their tax payments. Suffice it to say that it's quite difficult to believe that Mr. Carreon is a legitimate donor with standing to sue (I have not examined the entire statute to see if it provides a private cause of action.) 


I'd also point out that proving this intent to only donate $20k is going to be tough. Inman apparently makes plenty of dough from the sale of his merch. Based on the content of his blog post, I'd suggest that he made a clear statement that overage would be directed towards the charities, not towards his pocket. 


The biggest problem with this complaint is that it assumes that everyone who wants to fundraise for a charity must comply with California's statute. As noted above, this is not the case. Also lolzworthy is the allegation that "the Bear Love campaign utilized false and deceptive statements and insinuations of bestiality on the part of the Plaintiff and his client's 'mother,' all of which tends to bring the Charitable Defendants and the institution of public giving into disrepute."


Some thoughts on this. 1) Calling someone's mom a bear fucker does not tarnish the institution of public giving any more than groups that raise funds to protest the funerals of gay people tarnish, well, all of us; 2) hot hot "bear" sex is quite popular in the Castro, which is not far from the courthouse wherein this lawsuit will be heard; 3) Plaintiff has not clearly denied that his mom  is not a) fat and b) one who might try to hump a bear. 


Count I further alleges a bunch of blah blah yadda yadda that boils down to, "these guys are engaged in deceptive advertising because it seems like ACS and AWF are totally down with this." It fully ignores the fact that the blog post in question freely admits that a) this is in response to the idiotic cease and desist letter and; b) that nobody ever stated that they were affiliated with either charity. 


We then get into the Lanham Act claims, which seem to center around someone registering a Twitter account designed to spoof Mr. Carreon. The fact that this guy has trademarked his name is pretty lulztastic. His biggest claim to fame is his work on the sex.com domain dispute. It appears that he is one of the primary sources of his personal wikipedia page. I COULD BE WRONG ABOUT THIS, THIS IS PURE SPECULATION. That said, the fact that he uses his  name in commerce to advertise his legal business gives him some trademark protection in his name. He has apparently registered this trademark as USPTO Registration No. 3,749,709. 


Someone registered @Charles_Carreon on Twitter. After Mr. Carreon sent a complaint to Twitter, they nuked the account. In the meantime, someone purported to be him and twatted some douchey tweets. Here's the thing: this is valid parody. If Rahm Emanuel had sued the owner of @mayoremanuel, he would have lost. Parody is protected by the First Amendment. Just ask Jerry Falwell. The point is that these "false tweets" are likely doing no more damage to Mr. Carreon's personal brand than Mr. Carreon is doing on his own. 


The third count of this complolzaint is "Inciting and Committing Cybervandalism In the Nature of Trespass to Chattels, False Personation, and Identity Theft." That's a mouthful. He complains that someone almost cracked his password for his website by submitting a lost password request. Fortunately, he was there, ON TEH INTARWEBS, poised to foil the nefarious Doe or, in the alternative, Inman from doing more harm. He claims, without a citation to legal authority, that people being mean to him on the Intarwebs is cybervandalism. 


It sounds more like someone is cyberbutthurt. 


Look at paragraph 64 of the complaint. I'm not quite sure how someone can crack a password and then request it be reset. In general, resetting a password requires 1) knowing the username associated with the account and 2) clicking the "I forgot my password" link. This is not the same as truly cracking a password, which would obviate resetting the password unless one wanted to maintain control over the account. Mr. Carreon does not allege this last bit, so I'm not sure where he's going with this. 


He was also (allegedly) signed up for many sites and mailing lists. Oh noes. The opt-out links in their emails probably provide a solid remedy. Unless he maintains his own physical servers, his trespass to chattels (fucking with shit he owns) claims are a bit verruckt as well. 


At any rate, this lawsuit seems ripe for Rule 11 sanctions (for filing a frivolous and douchecanoey lawsuit) as well as a Rule 12(b)(6) motion to dismiss. But I suspect that Inman's lawyer already knows that.