Hila and Ethan Klein are the duo behind h3h3productions, a YouTube channel dedicated to the comedy found in Internet culture.
With more than 4.6 million subscribers the channel is doing extremely well, but last year faced a fight for its very existence. In May 2016, the pair announced they were being sued by YouTuber Matt Hosseinzadeh, who also produces comedy content and publishes it on his MattHossZone channel.
The problem lay in a video produced by H3h3productions (published on a sister channel in February 2016) in which they poked fun at Hosseinzadeh, using clips of their rival’s videos for material. The Kleins said this was fair use but Hosseinzadeh viewed it as copyright infringement.
According to the Kleins, Hosseinzadeh initially approached them with settlement offers of a few thousand dollars and also gave them the opportunity to publicly apologise and promote his content. The Kleins refused to back down so at this point, Hosseinzadeh sued for copyright infringement and defamation.
Fighting a lawsuit is extremely expensive but the Kleins received overwhelming support online, particularly via a GoFundMe campaign that pulled in over $170,000.
With the legal battle well underway, both sides asked the court for a summary judgment in their favour in advance of a full trial. In a decision handed down yesterday by District Judge Katherine B. Forrest, the Kleins prevailed. In a 21-page ruling, the Judge wastes no time in getting straight to the point.
Describing the Klein’s video and the critique contained within as “quintessential criticism and comment” equivalent to the kind one might find in a film studies class, Judge Forrest goes on to examine the cornerstones of fair use, including the purpose of the work, the amount of copyrighted content used, and the effect of the use of the content on its potential market.
“Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video; there is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video,” Judge Forrest writes, noting that the former effectively transformed the latter into “fodder for caustic, moment-by-moment commentary and mockery.”
“For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law,” the Judge concludes.
On the defamation front, Hosseinzadeh fared no better, with the Judge noting that truth is an absolute defence to a defamation claim.
“Further, it is clear that defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law. For these and the other reasons set forth below, plaintiff’s defamation claim fails. Defendants’ motion for summary judgment is therefore GRANTED, and plaintiff’s motion is DENIED.”
The news was quickly welcomed by Ethan Klein.
We won the lawsuit. Video coming soon. Huge victory for fair use on YouTube.
— Ethan Klein (@h3h3productions) August 23, 2017
What happens next is largely up to Hosseinzadeh. He still has the opportunity to appeal the case but whether he will take that opportunity given the clarity of the ruling and the additional costs involved will remain to be seen.
In the meantime, the decision (via Techcrunch) provides food for thought and guidance for other YouTubers making reaction videos.
The ruling doesn’t give YouTubers blanket clearance to continue with impunity but does clarify how much content can be used, provided adequate commentary and criticism is present. They’re valuable guidelines in a notoriously difficult area of copyright law.