Charles Carreon, Esq. June 11, 2012

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reasonable expectations of the audience, n egate that impression; and (3) whether the statement is sufficiently factual to be susceptible of being proved true or false. Gardner, 563 F.3d at 987. The Blog Post contains much more than just the statements re ferred to in your letter. It captures a spirited debate (as reflected, among other things, in the comments section) about the user submitted content on the intern et, and the challenges associated with policing copyright infringement. The comments include posts from supporters of The Oatmeal and Funny Junk alike

. Additionally, the Blog Post contains an “update” link

to a subsequent blog post by The Oatmeal that describes

FunnyJunk’s

actions following the Blog Post. This post also c ontains comments from users th at continue the debate stirred by the original Blog Post. (Interestingly, the subsequent blog post contains a screenshot of a statement by FunnyJunk that, und er FunnyJunk

’

s own logic, would constitute defamation:

“[t]he Oatmeal wants to sue funnyjunk and shut it down!”

The Oatmeal never threatened to sue FunnyJunk, nor did he ever indicate that he wanted to shut down

FunnyJunk’s

website.) Courts have found that the context of a heated debate negates the impression that a defendant was asserting a verifiable fact, as opposed to a statement of opinion.

See

,

e.g.

, Gardner, 563 F.3d at 988 (radio talk show program that included drama, hyperbolic language, opinionated and arrogant host, and heated controversy reduced audience

’

s expectation of learning an objective fact); Underwager, 69 F.3d at 366-6 7 (fact that statements were made at workshop which included speakers on opposite sides of the

“

heated debate

”

over child witness reliability, relevant to analysis); Art of Living Found. v. Does 1-10, No. 10-CV-05022-LHK, 2011 U.S. Dist. LEXIS 63507, 2011 WL 2441898, at *7 (N.D. Cal. June 15, 2011) (readers less likely to view statements made on blogs with

“

heated discussion and criticism,

”

as assertions of fact); Nicosia v. De Rooy, 72 F. Su pp. 2d 1093, 1101 (N.D. Cal. 1 999) (readers less likely to view statements made as part of debate concerning a

“

bitter legal dispute

”

as assertions of fact); Washburn v. Lavoie, 357 F. Supp. 2d 210, 215 (D.D.C. 2004) (in the context of an ongoing dispute between

the parties who were neighbors, no reasonable person would view defendants’ statement that plaintiff “illegally” tape recorded them as defamatory)

. There is no doubt that thi s dispute specifically, and the topic of user submitted content and copyright enforcement generally, is a topic of ongoing debate, not only between the parties, but also by the online community at large. Indeed, the interactions between The Oatmeal and FunnyJunk drew attention to the topic from many of the internet

’

s most recognized media outlets, including ArsTechnica, BuzzFeed, MetaFilter, GeekWire, and others. These are exactly the type of circumstances that have led courts to conclude that a statement underlying a claim for defamation would be viewed as opinion or mere hyperbole rather than an assertion of an objective fact. Furthermore, courts have acknowledged that online forums such as blogs generally create a more relaxed communication environment where statements are less likely to be understood as containing assertions of fact.

See

,

e.g.

, Sandals Resorts Int

’

l, Ltd v. Google, Inc., 925 N.Y.S.2d 407, 415-16 (N.Y. App. Div. 2011) (observing that readers give less deference to allegedly defamatory remarks published on online forums such as blogs than to similar remarks made in other contexts); Art of Living Found., 2011 U.S. Dist. LEXIS 63507, 2011 WL 2441898, at *7 (statements made on obviously critical blog with

“

heated

”

discussion and criticism less likely to be viewed as assertions of f act). The Oatmeal

’

s site and blog are paradigmatic examples of a relaxed communication environment where readers can expect to encounter hyperbole, sarcasm, and other elements commonly associated with online humor. Indeed, this is the essence of The Oatmeal. Given the larger context of the Blog Post, such as the debate among readers in the comments sections, The Oatmeal

’

s