In our brave new world where millions of ordinary people are copyright holders of snaps they publish to social media or videos they upload to YouTube, awareness of copyright law is at an all-time high.
Evidence is easily found on Reddit, where users of /r/copyright and similar subs answer questions including: “Can I print t-shirts with Batman on the front if I only do a few and give them away?” and “Is it copyright if nobody knows I copied a song and changed it so it sounds nothing like the original?”
Similar gems are a regular occurrence on YouTube. Who hasn’t seen copies of well-known tracks uploaded in full and protected by the statement: “I do not own this song. Full credits go to the copyright owner. No copyright infringement intended.”
And then there’s the increasing number of channels posting ‘copyright disclaimers’ citing Section 107 of the Copyright Act 1976, stating that since everything on the channel is ‘fair use’, channel owners are exempt and can never be sued.
While exemption is an interesting proposition, the image above appears to show a channel going further still; while happily claiming fair use ‘protection’ for themselves, they warn of legal penalties should anyone else use “any part” of their video.
Success, Fair Use and Lawsuits
With lots of hard work and even more luck, these channels could one day be as successful as the award-winning H3 Podcast. Created by Ethan and Hila Klein, the channel has over 2.93 million subscribers and almost 1.2 billion views.
Not only are the Klein’s experts in growing a brand and popularizing their work, they are also very knowledgeable about copyright law, and particularly well-versed when it comes to fair use. Unfortunately, that hasn’t stopped them from being sued; of the last seven years or so, at least three years have been spent defending copyright infringement lawsuits.
The Klein’s emerged victorious from a lawsuit in 2017 after mounting a successful fair use defense. That wasn’t without its traumas; copyright lawsuits can be extremely expensive and the Kleins’ lives may have taken a different turn had fans not donated $170,000 towards their defense.
119 Seconds of Boxing, 124 Weeks of Litigation (and counting)
It’s not uncommon for the H3 Podcast to discuss current events, providing the type of commentary and criticism that allows for the limited use of copyrighted content without having to obtain prior permission. In April 2021, in the wake of Jake Paul’s 119-second knockout of former UFC fighter Ben Askren, H3 Podcast declared the fight “a disaster” in a video on YouTube, alongside footage of the fight to back up their claims.
Event promotor Triller responded with a copyright infringement lawsuit demanding $50 million in damages. Four months later, H3 Podcast’s attorneys filed an extremely detailed motion to dismiss, most likely at considerable expense.
If those ‘fair use immunity’ disclaimers on YouTube actually worked, H3 Podcast wouldn’t be spending money defending the use of a clip that represents just a fraction of a four-hour broadcast. Admittedly, things were complicated somewhat by Ethan’s claim on the show that he hadn’t actually paid for the fight.
Indeed, the clip shown on the YouTube podcast was actually a pirated copy that Ethan had uploaded to a different YouTube channel as an unlisted video. Of course, Triller’s legal team seized the opportunity to pile on the pressure.
Does a URL in a Video Infringe Copyright
With a subtle shift in tactics, Triller said it had no interest in stifling H3’s commentary and criticism, in a video that had already generated a million views. Triller even implied that under slightly different circumstances, the clip of the fight shown in the commentary video could’ve been shown legally, if it wasn’t for the defendants’ “negligence, willfulness, or maliciousness, or some combination thereof.”
The image below shows a screenshot of that video, with the offending information redacted.
The fact that the URL of the unlisted video appeared in H3’s commentary piece (‘distribution video’) allowed Triller to claim that the video facilitated the infringements of those who watched the fight on the unlisted channel, which relied on H3’s directly infringing upload.
Order on H3’s Motion to Dismiss
With the lawsuit now into its third year, the court has just ruled on a motion to dismiss filed by H3. One aspect of that motion argued that Triller’s claims fail because the unlisted fight video was ‘fixed’ after the broadcast was transmitted. The court found that since Triller alleged that H3 had a copy of the video, but wasn’t on the list of those authorized to obtain the broadcast, at this stage, the company’s allegations are sufficient.
The court’s handling of the URL in the unlisted video, which appeared in the commentary video unredacted, went as follows:
Defendants made the Unlisted Video independently accessible by displaying its URL in the Distribution Video. Anyone with that URL was able to access the Unlisted Video. At the time of the briefing of the Motion, it appears that the Unlisted Video had been viewed 65 times.
Although the Distribution Video displayed the URL in small font, and although no one spoke on the Distribution Video urging viewers to watch the Unlisted Video or read the URL, the URL was visible. The Distribution Video was viewed more than one million times, far more times than the Unlisted Video.
However, drawing every reasonable inference in Plaintiff’s favor, and recognizing that evidence of Defendants’ claimed intent is not to be considered in considering a motion to dismiss, the allegations of the [Second Amended Complaint] are sufficient to present the inference that Defendants created the Unlisted Video and made it publicly accessible for reasons unrelated to the critical commentary in the Distribution Video.
In conclusion, the motion to dismiss was denied in part and granted in part, meaning the case will continue. For how long isn’t clear, but for YouTubers preparing their next counternotice in response to a copyright claim, there’s considerable food for thought.
While it’s convenient to claim that use of copyrighted content is ‘fair’, it doesn’t necessarily follow that it is. Even in cases where everything points towards a finding of fair use, there is nothing to stop a rightsholder from filing a lawsuit, no obvious timeframe to discover who was right, and no miracle way of paying attorneys’ fees.
Millions of people rely on fair use every single day, but it’s a legal defense to be called upon sparingly, not a magic YouTube spell for everyday use.
The order on H3’s motion to dismiss is available here (pdf)