Editor’s Letter: The Oatmeal, The DMCA, and a whole lot of bear love
By Andy Malt | Published on Friday 15 June 2012
If you’ve spent any significant time on the internet, you will probably have come across The Oatmeal. A popular destination for fans of online humour, it features comics created by web designer Matthew Inman, covering topics such as how to get more likes on Facebook, email etiquette, how to use a semi-colon, and important questions like “how many hungry weasels could your body feed?”
Even if you don’t recognise the name The Oatmeal, you’ll likely recognise Inman’s distinctive drawings from somewhere. Maybe a Facebook post that once flashed past your eyes. Or perhaps you have seen his work on another ‘humour site’.
As we know, the internet is littered with creative works borrowed or stolen from elsewhere, shared, replicated, reworked, copied and so on. It is, many will tell you, just the way of the internet, and perhaps simple human nature. But whatever your opinion on that particular issue, you can probably see why creators might get a little annoyed when it happens, especially if their work is reposted without credit or a polite link back to the original site.
When large quantities of his comics from The Oatmeal appeared, mostly without credit, on another website called FunnyJunk.com – a sort of YouTube for funny pictures and artwork – Inman wrote a blog post about the problem, asking his readers what he should do about it. Claiming that the FunnyJunk site was cashing “six figure advertising checks from other artist’s stolen material” while hiding behind the takedown provisions in the US Digital Millennium Copyright Act, he settled on sending a simple cease and desist letter.
The owner of FunnyJunk.com responded by sending a message to all of his users telling them (erroneously) that Inman was attempting to have his site shut down. He did then remove all the posts on his site that had “The Oatmeal” in the title, though this meant that images from The Oatmeal that had no reference to their original source remained. Meanwhile The Oatmeal Facebook page was bombarded with messages from angry FunnyJunk users.
The latest development in this saga came this week when Inman published a letter he’d received from internet lawyer Charles Carreon on behalf of FunnyJunk.com. The legal notice accused Inman of defamation for the things he’d previously written about FunnyJunk.com, and demanded that he remove all mention of the website from TheOatmeal.com and hand over $20,000 in damages to avoid further action being taken.
That I’m telling you about this latest chapter probably gives you some hint that neither of those demands have been met. Instead, Inman published an annotated version of Carreon’s letter and laid out his own plan for how to proceed. This was that he would raise $20,000 in donations from his readers, take a picture of the money, send it to Carreon “along with this picture of your mom seducing a Kodiak bear”, and then donate half the money to The National Wildlife Federation and the other half to The American Cancer Society.
“Consider this my philanthropic, kind-hearted way of saying: FUCK OFF”, he concluded. “Operation ‘Bearlove Good. Cancer Bad’ now commencing!”
In scenes not dissimilar to those we saw when Amanda Palmer’s Kickstarter campaign to raise money for her new album launched last month, the $20,000 target was reached in just 64 minutes. With eleven days left to go, the total now stands at almost $170,000 and is continuing to rise.
What effect will this have on FunnyJunk.com? In the short term, very little it seems. The site is still as popular as ever, with new pictures collected from around the internet added by its users every minute of the day. Indeed it may even have picked up a few more users following all the coverage it’s had this week. But Inman’s response is still funny and has raised a lot of money for charity, which is a good thing. Plus, of course, it highlights an issue that is becoming ever more prominent of late: the ‘safe harbour’ provisions in the so called Digital Millennium Copyright Act.
FunnyJunk.com would argue that it operates within the law because it removes any unlicensed works if and when the copyright owner makes it aware of them. And the DMCA says that, providing websites that enable others to upload content, some of which might be unlicensed, operate such a takedown system, they are not liable for any copyright infringement that technically occurs between the unlicensed content being uploaded, and it being subsequently spotted and removed. With this provision, the DMCA was trying to protect technology and internet innovators whose new platforms might inadvertantly help others infringe, fearing that without that protection such innovation would be hindered.
But with that law now in its thirteenth year, many rights owners are getting frustrated, believing that an increasing number of websites are utilising the obvious flaw in the system – that it takes time for rights owners to spot infringing content, and said content is available for that time, and once a rights owner has it removed another user will likely reupload it, sending the rights owner on a wild goose chase.
This means that such sites can rely on large quantities of content. that they are not paying for. being available most of the time, which drives traffic, which drives advertising. YouTube has tried to overcome the weakness by paying rights owners a cut of ad revenue whenever content inadvertantly arrives on its site, and by trying to spot pre-registered unlicensed content as it is uploaded. Some other sites have been less conscientious. And some might argue deliberately so. Though, to be fair to such sites, when cases like these have gone to court in America, judges have generally set the standard levels for takedown systems pretty low.
Not that that is necessarily relevant if a content sharing site is global, after all the Digital Millennium Copyright Act only relates to the US. In most countries, including the UK, such safe harbour provisions do not really exist (and certainly not in such clear and simple terms). So much so, even YouTube isn’t necessarily protected. In Germany a court recently ruled that the Google-owned service should block all songs represented by collecting society GEMA from appearing on the video sharing site without the rights organisation having to constantly report unlicensed content (though both sides are now appealing this ruling).
Of course in the music world more generally, Grooveshark is now at the heart of this debate, in both Europe and back in the US. Grooveshark lets users upload tracks, meaning it has a vast catalogue of unlicensed music. In its home country of America, Grooveshark says it’s just an audio version of YouTube, and that it operates a takedown system and is therefore within the law. But many rights owners accuse the streaming platform of being one of the sites that operates a deliberately shoddy takedown system, ensuring it has as wide a selection of music as possible at any one time.
Though while rights owners might get pissed off by that, the major labels’ lawyers have noted that past court rulings have generally accepted shoddy takedown systems as being OK, so in its latest legal battle with Grooveshark, Universal has made different allegations – ie that Grooveshark staff routinely upload unlicensed music to the website themsleves (ie it’s not the users), which would deprive the company of DMCA protection.
Of course Grooveshark strongly deny those claims. But either way, many labels, publishers and artists reckon that, even if it is users uploading the dodgy content, services like Grooveshark shouldn’t be able to hide behind shoddy takedown systems, and that the DMCA should be amended to make that so. The RIAA is already considering lobbying on this.
Whatever happens, the goings on over at The Oatmeal this week highlight that this isn’t an issue that only affects music and movies. Of course, that an overhaul of the DMCA would solve the problem is by no means certain – as already noted, plenty of websites are operating outside the US just fine where there is no DMCA protection – and even if America got stronger rules, realistically only big rights owners with big pockets would be able to sue to force a more efficient removal of its content on unlicensed sites. Nevertheless, I know rights owners large and small, both corporates and individual creators, who increasingly think this is an issue that needs to be addressed.
But for the time being at least, and maybe for the forseeable future, the likes of Matthew Inman may just have to stick to being funny and charitable in the face of frustrating comic theft.
On this week’s podcast, Chris Cooke and I had our usual weekly chat about the music business. This week we discussed such diverse topics as Morrissey’s out of court settlement with NME, Tesco’s purchase of We7, ReDigi’s new plans to give artists a cut of MP3 resales, and Andrew WK’s booking to speak at a My Little Pony convention. It’ll be going online soon.
You can stream, download and subscribe to the podcast here.
IN THE NEWS
Let’s start with how Morrissey let us all down this week. When he finally got around to launching a libel action against NME last year, claiming that the magazine called him a racist in a 2007, he was pretty bullish about it all. He was out for blood. He was going to take then NME editor Conor McNicholas and his cronies down and dance about on their lifeless bodies. Then this week he accepted a half apology and no financial reparation of any sort. And he denied us what would certainly have been a very entertaining trial. Bloody Morrissey.
Over in the world of digital music services, there has been much going on. The biggest news is that We7 is now 91% owned by Tesco. The move comes as Tesco expands its online business, starting last year with the movie streaming service Blinkbox. Elsewhere, Deezer’s CFO said that Spotify’s success is key to his own company’s growth, ReDigi pledged to give artists a cut of MP3 resales, Amazon began negotiating licences for its locker service, and iTunes planned to drop Ping.
The UK’s sound recording royalty collecting agency PPL announced at its AGM this week that revenues were up in 2011, while PricewaterhouseCoopers published a report predicting that the record industry would see new growth over the next five years. Which is good news for record labels all round.
Of course, artists have other revenue streams to fall back on if record sales don’t pick up. Justin Bieber and Nicki Minaj, for example, sold their perfumes to leading scent manufacturer Elizabeth Arden, and Andrew WK got a booking to give a motivational speech at a My Little Pony convention. Not every new artist innovation is so successful though; the glowing wristbands Coldplay are giving out to fans at their concerts are both cripplingly expensive and come back to life and scare fans once they get them home. And Lauryn Hill has found out that just not paying any tax doesn’t really work as a business model either.
FEATURES AND NEW MUSIC
Yeah, we’ve got features. One of them is an interview with Jo Vidler of Secret Productions, who oversees The Secret Garden Party, Wilderness and Glade festivals, the latter of which takes place this very weekend. Another is an excellent playlist put together by Matt Farthing of Stay+. This week’s Beef Of The Week sees Billy Corgan announce that he wants to piss on Radiohead. And if you can stomach any more, then you could check out this week’s festival line-up updates.
In the Approved column this week, we had Psych-pop from Ariel Pink’s Haunted Graffiti (who are still together, whatever Ariel Pink tells you), electro pop from Charli XCX, Swedish pop from Hanna, and a nice bit of modern classical music from Jim Perkins.
Elsewhere on the site, there was plenty more new music too. You can grab the first track from St Vincent and David Byrne‘s collaborative album, watch a trailer for the new Pet Shop Boys album, check out an Erol Alkan remix of Kindness, watch Here We Go Magic perform in a bandstand on Hampstead Heath, and listen to new tracks from Frank Ocean, Animal Collective, Sky Ferreira, Holy Other, Taken By Trees, Nine Black Alps, Menomena, Keel Her, Race Horses and Eagulls. And after all that, why not watch the trailer for a new short film starring Lindsay Lohan and soundtracked by one half of Daft Punk?