intellectual-property fair-use
Large YouTuber: Copyright Lawsuit vs Fair Use
<p>A channel with close to 1.5-million subscribers on YouTube, <a href="https://www.youtube.com/channel/UCDWIvJwLJsE4LG1Atne2blQ" rel="nofollow">H3H3Productions</a>, is being sued on the grounds that <a href="https://www.youtube.com/watch?v=fEGVOysbC8w" rel="nofollow">their video infringes another author's copyright</a>.</p>

<p>Their channel essentially reviews other YouTube videos in the form of satire, mockery, and comedy. I've been watching them for over 6-months, so first-and-foremost I'm a fan. But after having thought about this situation for a few days, I'm not entirely sure if the lawsuit is unfair. In H3H3 videos, they don't just show small clips or images from videos that they make fun of; they show almost the entire work of the targeted author's video but in the form of small clips. </p>

<p>The format is essentially: </p>

<ul>
<li>Show a clip/segment of the other person's video</li>
<li>Pause said clip</li>
<li>Change scene from the reviewed video to H3H3 making commnetary on that particular clip/segment</li>
<li>Pick up where you left off on the video and show the next 5-10 seconds</li>
<li>Rinse and repeat</li>
</ul>

<p>From watching their videos, I'd estimate that H3H3 shows at least half of the other author's video more than 95% of the time. To be honest, when I watch the original work (which is rare) or have happened to see it before hand, I'd say that H3H3 uses more than 75% of the video they review within their own video.</p>

<p>H3H3 is claiming in their defense that the grounds of <strong>Fair Use</strong> is in their defense and thus does not breach any copyright. Does it?</p>

<p><strong>Only a court can decide if use is fair.</strong> As Dale stated, we will know whether it was or was not legally fair when a court decides, and it ceased to be appealed. Unfortunately, there is no formula. Remember that fair use is an exception to rules that make copyright infringement illegal, so it occupies a narrow space practically by definition.</p>
<h2>Fortunately this was already decided</h2>
<p><em>(yes, I recognize that this is an old question)</em></p>
<p>Judge Katherine B. Forrest <a href="https://www.courtlistener.com/docket/4356997/116/hosseinzadeh-v-klein/" rel="nofollow noreferrer">decided in favor of your favorite YouTuber</a>:</p>
<blockquote>
<p>The Court has held that the Klein video constitutes fair use, and further that the Klein video does not infringe plaintiff’s copyrights.</p>
</blockquote>
<p>and further that:</p>
<blockquote>
<p>But even if this Court held the Klein video is not fair use, the Court would still dismiss Claim II because defendants clearly had a subjective “good faith belief” that their video did not infringe plaintiff’s copyrights. Cf. Lenz, 815 F.3d at 1153.
It is undisputed that defendants understand the concept of fair use and have an
established practice for ensuring their videos make fair use of copyrighted material.</p>
</blockquote>
<h2>But that answer isn't entirely satisfying, is it? Let's get specific.</h2>
<p>Fair use seems to be something that <em><strong>should</strong></em> be clear to both parties: the copyright holders and the user of copyrighted content. While it is true that the percentage of original content may be of concern, there is no specific percentage nominated in Title 17 Chapter 1 Section 107 of the US Code.</p>
<blockquote>
<p>In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.</p>
</blockquote>
<p>It takes vigilance on the part of both parties to cohabit this narrow law. Fortunately, YouTube has <a href="https://youtube-creators.googleblog.com/2016/04/improving-content-id-for-creators.html" rel="nofollow noreferrer">recently taken measures</a> to ensure that use that <em><strong>should</strong></em> (presumably in their view) be judged as fair will remain live on their site while a dispute process is pursued. This procedure resolves cases outside of formal legal battles, which can be costly for both parties. However, YouTube has pledged to <a href="https://publicpolicy.googleblog.com/2015/11/a-step-toward-protecting-fair-use-on.html" rel="nofollow noreferrer">pay legal fees</a> of content providers that are sued for copyright infringement, in special circumstances (esp. when the use was fair, and when a claimant is abusing, again presumably as determined by some legal counsel at YouTube). They discuss similar matters in their <a href="https://support.google.com/youtube/answer/2797449?hl=en&amp;ref_topic=2778546" rel="nofollow noreferrer">FAQ page</a>.</p>
<blockquote>
<p>Why did YouTube let an abusive claimant remove my video?
YouTube takes action to address cases of abuse and misuse in our copyright takedown processes. While we cannot comment on specific cases or our processes, we do look into abuse of our copyright tools and processes, and have a zero-tolerance policy for claimants we've deemed abusive. Misuse of the copyright process (for both takedowns and counter notifications) can result in termination of an account.</p>
</blockquote>
<h2>And remember that courts love precedent</h2>
<p><strong>Future cases will likely leverage the decisions made in the case you mention</strong>. And while the following does not have any real legal value, you may find comfort in knowing: there are many YouTubers out there that heavily leverage others' content, and their videos are still up. Again this is not strictly speaking a precedent, but you can safely assume that in cases where a high-profile YouTuber (say CinemaSins, for instance) uses content from many content owners, and uses a great deal of it, they will likely have come up against claims of unfair use, and have emerged with an intact channel. The aforementioned avenues that YouTube provides should be utilized wherever possible to stay out of court.</p>

<p><strong>We will find out when (and if) it goes to court.</strong></p>

<p>A copyright owner can sue anyone that they feel is breaching their copyright - they must provide sufficient evidence to convince the court that their copyright has been breached "on the balance of probabilities", that is, it is more likely than not that it has been breached.</p>

<p>If they get that far (which in the circumstances you describe the probably will, indeed, I would be surprised if the defendant didn't just concede it) then the defendant is entitled to raise fair use as an affirmative defense. That is, the onus is on the defendant to provide sufficient evidence that the use falls under the fair use protection. If they are successful in this they win, pay their lawyer the hundreds of thousands of dollars they owe and get on with their life. If not, they lose and, in addition to paying their own lawyer they have to pay damages to the copyright owner and stop doing whatever they were doing that caused the breach.</p>

<blockquote>
  <p>I'm not entirely sure if the lawsuit is unfair</p>
</blockquote>

<p>So? If the USA went to war with Monaco that wouldn't be fair either. What's your point?</p>

<p>Courts are about resolving disputes according to the law, they are only tangentially interested in "fairness". Sometimes the law is not fair; its like life in that respect.</p>
