[aseemk]

This is amazingly and impressively thorough. He cites relevant caselaw left and right; the two that particularly struck me were:

- "FunnyJunk also alleges The Oatmeal's statements constitute false advertising under the Lanham Act. However, the statements made by The Oatmeal do not constitute commercial advertising or promotion, and therefore section 1125(a)(1)(B) of the Lanham Act is inapplicable."

- "Even assuming that all of the content on FunnyJunk is uploaded by users and FunnyJunk otherwise qualifies for DMCA immunity, it’s possible that The Oatmeal may be able to satisfy the “red flag” exception for DMCA immunity. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 41 (2d Cir. 2012) (discussing “red flag” test and reversing grant of summary judgment in favor of YouTube). It is also possible that FunnyJunk hasn’t complied with the requirements of the DMCA and thus cannot take advantage of its protections. Among other things, the DMCA requires a service provider to designate an agent, provide contact information, and file a notice of designation with the Copyright Office. Without taking a position on the other issues, I’ll note simply that FunnyJunk does not appear to have a notice of designation on file with the Copyright Office. This alone would be enough to undermine anydefense of immunity to claims of infringement that The Oatmeal (or third parties) may assert."

Great lawyer.

[engtech]

Another interesting point is that the Oatmeal started a reddit-like site called http://bearfood.com 25 days ago.

I wonder if that could make him be considered a "competitor" to FunnyJunk in the eyes of the law.

[6ren]

They are competitors for entertainment eyeballs anyway. Usually, competition is defined by a market (i.e. what customers get from them), not by how they manufacture their product. Of course, each litigant will construe the situation that best suits their case. related: "B. Market Lies" in http://blakemasters.tumblr.com/post/21169325300/peter-thiels...

Meanwhile, it's pageviews for everyone.

[fusiongyro]

I don't see the connection between defamation and competition. Would it change the nature of the lawsuit if he were a competitor?

[RobAtticus]

It might make it easier to prove there is malicious intent. If I'm in a completely separate business and I make a remark about your business practices, one can see it as an outsider making a (negative) observation if the language is only mildly disparaging. If I'm in the same business as you, it might come off as more of an attempt at me undermining you or trying to gain some benefit.

Ultimately it probably doesn't make much difference, in that defamation is usually difficult to prove anyway, but the context could sway things a bit.

[armsteady]

It doesn't look like http://bearfood.com has advertisements so he isn't looking to make money on it. That's not to say that ads won't show up at a later date though.

[fusiongyro]

Ah, that makes sense, thanks.

[darkarmani]

Wouldn't that make it easier for the Oatmeal to claim damages?