YouTube Personality Upset About Criticism Of His Video Loses Infringement/Defamation Lawsuit

from the stopmakingfunofme.pdf dept

Last year, YouTube personality [add scare quotes as needed] Matt Hosseinzadeh (a.k.a., "Matt Hoss," "Horny Tony," "Bold Guy") sued H3H3 Productions (composed of YouTube personalities Ethan and Hilla Klein) for copyright infringement. His argument? Their video criticizing his pickup-lines-and-parkour video infringed on his registered copyright by using footage from his video. He decided to make his lawsuit even stupider by adding defamation claims after the Kleins criticized his legal threats.

After digging himself a $3,750 legal fee hole, Hoss's lawyer issued a cease and desist to the Kleins, demanding they:

- take down the video

- make a new video apologizing for "appropriating" his "art"

- say nice things about Horny Tony, et al for the next 60 days

The Kleins refused. They published a video about the lawsuit and raised over $100,000 for legal defense in less than 24 hours. Matt Hoss, over the same period of time, amassed hundreds of negative YouTube comments. At least the comments are free. Legal fees, especially including your opponent's, are not.

Judge Katherine Forrest has issued her ruling [PDF] in the case and there's nothing in it for Matt Hoss. Hoss says copyright infringement. The Kleins say fair use. The judge says:

The key evidence in the record consists of the Klein and Hoss videos themselves. 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. 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 court further points out that criticism and commentary are perhaps the most solid foundation on which to build a fair use defense.

It is well-established that “[a]mong the best recognized justifications for copying from another's work is to provide comment on it or criticism of it.” Id. Indeed, the Second Circuit has held “there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107,” including “criticism” and “comment.”

The court also takes apart Hoss's claim the Kleins' challenge of his takedown notice was somehow a violation of the DMCA.

The Ninth Circuit has held that, in submitting a takedown notification, “a copyright holder need only form a subjective good faith belief that a use is not authorized.” [...] In other words, a copyright holder is not liable for misrepresentation under the DMCA if they subjectively believe the identified material infringes their copyright, even if that belief is ultimately mistaken. See id. It is clear to this Court that the same subjective standard should apply to the “good faith belief” requirement for counter notifications. If the same standard did not apply, creators of allegedly infringing work would face a disparate and inequitable burden in appealing an online service provider’s decision to remove or disable access to their work. Given the fact that the statutory requirements for takedown notices and counter notifications are substantially the same, the DMCA plainly does not envision such a scheme.

The court then dismisses the defamation claims, which targeted statements made by the Kleins in their video discussing this very lawsuit. (Hosseinzadeh added the defamation claims in his second amended complaint.) Hoss claimed being portrayed as someone who sues people when he's criticized was defamatory -- an assertion he made in this lawsuit he filed against people who criticized him. The court points out, redundantly, that the statements made by the Kleins were (so very obviously) "substantially true." Even if they weren't "substantially true," they would be inactionable statements of opinion.

This spectacular loss on both fronts should be a warning to others who think they can sue their critics into silence. But it probably will do little to deter either of the stupid actions Hoss engaged in: bogus DMCA takedown demands and a laughable lawsuit. As always, hope springs eternal in the butthurt.

Filed Under: anti-slapp, bold guy, copyright, criticism, defamation, ethan klein, fair use, hilla klein, horny tony, matt hoss, matt hosseinzadeh, slapp suit, videos
Companies: youtube

YouTube Personality Files Bogus Copyright Infringement Lawsuit To Shut Up Two Critics

from the 'this-will-end-the-criticism-once-and-for-all!' dept

Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)

Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.

However, they aren't immune to criticsm. The two people behind YouTube channel H3H3 Productions posted a reaction video containing parts of one of HossZone's pickup-and-parkour recordings. The video, which the Kleins made private shortly after the legal threats began, has been mirrored here. This made Hoss irritable and he sent a lawyer after Ethan and Hila Klein of H3H3 Productions.

They've detailed the experience here:

According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)

H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.

Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.

That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:

On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).

The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”

Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.

And, contrary to what is stated in the complaint, the ratio of H3H3-to-Hoss is far less that his lawyer would make it appear. [link to ad-blocker blocker Forbes]

The 13 minute h3h3 productions video in question uses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.

The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.

Moving on:

The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.

Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.

The Infringing Video does nothing to alter the original Work with new expression, meaning, or message

The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.

These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.

Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.

People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.

What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.

On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”

And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?

Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.

Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.

Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.

The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.

All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.

Filed Under: bold guy, censorship, copyright, criticism, dmca, free speech, matt hoss, matt hosseinzadeh, reaction videos, reviews, threats
Companies: h3h3, youtube