On the downside, using unlicensed content to gain traction renders successes vulnerable to sudden collapse on the whim of a copyright holder. That could mean a strike, a channel ban, or even a lawsuit.
After Arvin De La Santos restreamed the Jake Paul vs. Ben Askren fight on his YourEXTRA YouTube channel in April 2021, Triller filed a DMCA notice and YouTube removed the content. For a channel that specialized in “drama related” topics, the next year of events could’ve taken it to the next level.
Triller Lawsuit – June 2021
YourEXTRA built an audience of 113,000+ subscribers and generated 14 million views in just four years, but after Triller hit De La Santos with a full-blown lawsuit in June 2021, the channel went quiet. Filed at a California district court, the scale of Triller’s complaint probably contributed to the silence.
Triller described De La Santos as a business entity and sued for copyright infringement (making the content available on YouTube), vicarious copyright infringement (liability for YouTube viewers’ infringement), plus violations of the Federal Communications Act (alleged interception of satellite broadcasts).
When combined these overly ambitious claims stretched well beyond six digits but even a partial win for Triller would’ve been devastating for De La Santos. So, in its determination to send a message to pirates, Triller dug in. What the YouTuber needed now was a good lawyer and on October 18, 2021, intellectual property specialist Steven Vondram stepped in to answer Triller’s complaint.
Triller Accused of Deception
Defendants are required to file an answer but in most cases they consist of a tedious list of yes, no, or don’t know type responses. This one was different. According to the defense, De La Santos was “enticed to settle the alleged infringement” instead of going to court. He reportedly paid a settlement fee to Triller, which came with a release of claims. Things didn’t go to plan.
“Thereafter, [Triller] filed this lawsuit and returned the settlement fee (without interest) and now seeks to recover damages and attorney fees that they are not entitled to,” the YouTuber’s attorney informed the court.
“This is a deceptive act and practice under California law. The parties have previously agreed and resolved this dispute, which Plaintiff has now refused to honor.”
Alleged wrongdoing in hand, De La Santos attempted to turn the tables. He asked for the complaint to be dismissed with prejudice, judgment to be entered in his favor, plus an order for costs and attorneys’ fees incurred to date.
Neither Side Gives Ground
A joint report to the court in November 2021 revealed a damages claim adjustment but little progress. Statutory copyright damages can reach $150,000 per claim but the report indicated $140,000. Triller’s original complaint demanded $110,000 for each violation of the Federal Communications Act but the report cited an adjusted figure of $10,000.
For his part, De La Santos insisted that since he’d settled the matter, he would respond by sueing Triller for damages. Triller warned it would depose both the YouTuber and a “corporate representative” of the YourEXTRA YouTube channel, and conduct discovery to find out how the broadcast was obtained, how it was shared and with whom, and whether any financial benefit was accrued by the YouTuber.
Money Makes The World Go Round
In March 2022, Vondran told the California district court that a written retainer agreement between him and his client required payment for certain fees “if a settlement wasn’t achieved” and if the lawsuit “moved to litigation,” which it clearly had.
Court records show that De La Santos couldn’t actually afford a lawyer so Vondran requested permission to withdraw as counsel for the defense, noting that “YourNEXT is NOT a corporation.” De La Santos could either represent himself or find replacement counsel, but he’d probably be forced to default, Vondran wrote.
Triller Wins Partial Summary Judgment
With De La Santos apparently in no position to mount a credible defense, five weeks later Triller submitted a proposed summary judgment declaring the YouTuber liable on three grounds: direct infringement, vicarious infringement, and violation of the Federal Communications Act.
Against defendants Del Santos, YourEXTRA, and Does 1-10, Triller demanded $50,000 jointly and severally under 17 U.S.C. § 504(a)-(c), $10,000 under 47 U.S. Code § 605 (Unauthorized publication or use of communications), plus reasonable attorneys’ fees and costs.
Triller submitted a second, largely unchanged proposed summary judgment this June and in July, United States District Judge Dale S. Fischer agreed that Triller was entitled to summary judgment on the issue of copyright infringement.
“Triller has demonstrated that even if Defendants were not actually aware that their conduct constituted copyright infringement, Defendants at the very least recklessly disregarded that possibility or were willfully blind to it,” Judge Fischer wrote.
Triller’s Damages Claim Lacked Substance
Triller’s $50,000 statutory damages claim for copyright infringement was based on its assertion that “at least one thousand people” chose to watch the fight on the YourEXTRA YouTube channel instead of paying $50 each to Triller..
The theory presented to the court stated that De La Santos had made “several hundred dollars” by gaining around one thousand followers and one million views on his YouTube channel by airing the fight. Given that the fight was quickly taken down by Triller, these numbers didn’t appear to make much sense. There were reasons for that.
Surprisingly, Triller’s figures were not obtained directly from YouTube. They were reportedly supplied by social media tracker Social Blade but carried no markings to prove that was actually the case. Even more fundamentally, the viewing numbers related to the YourEXTRA channel overall, not the number of views generated by the infringing fight broadcast.
Judge Fischer concluded that the evidence was inadmissible.
No Evidence to Support Remaining Claims Either
Claims that De La Santos intercepted a satellite broadcast in violation of the Federal Communications Act also fell flat. Section 605 only applies when a broadcast is received from the air and since Triller’s evidence failed to establish that, its motion on that cause was denied.
Triller’s claim for vicarious copyright infringement fared no better. While the Judge found the company’s direct infringment claims convincing, no evidence of copyright infringement carried out by YouTube users was presented to the court. Without that, the claim failed.
In conclusion, Triller’s motion was granted in respect of willful copyright infringement but denied on all other grounds. Triller responded by filing a motion to dismiss all of the claims denied by the Judge, leaving a single copyright infringement claim intact. Good news for De La Santos then? Not at all.
Late October 2022, with liability for willful copyright infringement confirmed by the Court, it was all but inevitable that Triller would revise its claim. Statutory damages allow copyright holders to receive damages of between $750 and $30,000 per work but, when infringement is willful, the maximum is increased to $150,000. That’s exactly what Triller demanded.
In his judgment dated November 16, 2022, Judge Fischer awarded Triller maximum statutory damages of $150,000 for willful copyright infringement plus $20,626.25 in attorneys’ fees.
With no means to pay for a defense, De La Santos couldn’t even argue over the small change. If this was a boxing match, both arms would’ve been tied behind his back as Triller punched him in the face. Whether that constitutes a ‘landmark’ victory is for others to decide but if nothing else, a clear message has been sent once again thanks to the availability of statutory damages in copyright cases.
Final Thoughts: $150,000 in Perspective
The fight itself lasted one minute and 59 seconds meaning that each second cost De La Santos a cool $1,433. According to the Georgia Athletic and Entertainment Commission, Jake Paul’s official purse was $690,000, meaning that De La Santos is now on the hook for just over 21% of Paul’s declared earnings.
Triller reported 500,000 PPV buys at $49.99 each, roughly $25 million. Jake Paul reported 1.5 million buys, roughly $75 million.
De La Santos will likely regret that night for a long time and there’s no question that Triller wants to send a clear message to pirates. Boxing fans, on the other hand, might point to a much bigger crime.
Four boxers who fought on the same card were paid as follows: Jeyson Minda ($8,000), Junior Younan ($25,000), William Jackson ($8,000) and Quinton Randall ($15,000). If we combine all four fighters’ purses, 39 seconds of infringement by De La Santos on YouTube covers the lot.
Or it would do if he actually pays anything, which is doubtful.
The YouTuber was served at an address in Canada where U.S. Federal and State Courts have no jurisdiction over Canadian residents or companies. Canadian courts can recognize foreign judgments but can also deny them, if foreign judgments offend Canadian public policy.