So… a bit more on The Oatmeal vs. FunnyJunk online brough-ha-ha. The link above it to an Ars Technica article which lays out a fair amount of the history regarding this online spat. I had largely ignored this bit of online drama until FunyJunk’s recent libel per se claims surfaced and tweaked my curiosity. In going back and reading up on the whole sordid affair (including the actions and reactions of not only the parties in question, but the partisans in each of their respective corners), I am struck that there significant issues here far beyond the interplay between copyright and trademark law, the DCMA, and defamation law.
A few of my initial takes on this situation:
1) Regardless of the merits of either side’s underlying legal claims, my assessment is that both sides have set out a brilliant case study of how NOT to handle a business dispute (unless of course you subscribe to the theory that there is no such thing as “bad” publicity). Both sides seem far more interested in pissing on one another than actually resolving the real underlying disputes. (While I have to give The Oatmeal a win on funny-points for his reply to FunnyJunk’s lawyer’s demand letter (see the response), it is certainly not a model of “de-escalation” of hostilities.)
2) The response of a number of partisans on both sides of the dispute (especially, but not exclusively, on the FunnyJunk side) illustrates just how far gone public perception of intellectual property and intellectual property protection has become. “Everyone should know that as soon as you post something on the internet, it’s not yours anymore,” is perhaps one of the most disheartening posts regarding intellectual property I have ever read (and I have come across more and more like it). I spend a lot of time writing (and thinking) about the need for reform in how the law protects and deals with intellectual property. The reason that I do that is because protection of intellectual property really matters! It is part of the lifeblood without which our burgeoning innovation economy will fall flat on its face. The very fact that the sentiment echoed in the quote above has become so pervasive is proof positive that our means and methods of protecting intellectual property are failing. The system only works if the majority buy into it. I fear we are approaching a tipping point where the consuming public feels so alienated from the systems of IP protection that they will entirely loose the point that IP protection is necessary and important. We need it to incentive innovation. But if the system is such that its own absurdities negate its benefits, then system is broken and we are left with IP anarchy. (Big Content has been screaming that we are approaching this point for a long time, but I fear that it/they, along with the growing hoards of patent (and other IP) trolls are in the process of creating a self-fulfilling prophecy.)
3) The internet has never been a place known for the civility of its discourse, but the current spat is shaping up as one of the more egregious examples of just how counter-productive flame wars are. And just for the record, while I am no shrinking violet and am not well known for mincing words, the ridiculous prevalence in the “discourse” in this spat of the epithet “fag” and its cognates is not just juvenile, it’s reprehensible.
Despite the rather depressing implications of this fight, there are some valuable lessons for businesses that have online presences and/or have (or depend on) intellectual property:
1) It’s not just whether you protect your intellectual property, but how. Good strategy includes gauging whether or not your handling of intellectual property (or others’ for that matter) is going to be something which enhances the value of the your business or detracts from it. Failed enforcement efforts, PR debacles, and enormous legal bills can all be a significant drag on a company. Good strategy helps you avoid these quagmires.
2) Seek out, obtain, and follow good advice from experienced professionals. If your business has a “situation”, good advice on both the legalities and the PR aspects of that situation are the best investments a company can make. Make sure the advice comes from advisers that really know what they are doing. Get the advice early in the process. The, perhaps most importantly, actually follow the advice.