INCREDIBLE: Jake Paul delivers an epic 119-second fight! The clash of the century on the H3 Podcast, the copyright tug-of-war has been going on for 124 weeks!

The evolution of copyright awareness

In our new world, where millions of ordinary people own the copyright to photos they post on social networks or videos they upload to YouTube, copyright awareness is at an all-time high.

Proof is easily found on Reddit, where users of /r/copyright and similar subreddits answer questions such as, "Can I print t-shirts with Batman on the front if I only make a few and give them away?" and "Is it copyright if no one knows I copied a song and altered it so that it looks nothing like the original?"

Similar nuggets are regularly posted on YouTube. Who hasn't seen copies of well-known songs uploaded in their entirety and protected by the statement: "I don't own this song. All credits go to the copyright owner. No copyright infringement is intentional."

And then there's the growing number of channels issuing copyright "disclaimers", invoking Section 107 of the 1976 Copyright Act, claiming that since everything on the channel falls under "fair use", the channel owners are exempt and can never be sued.

While the exemption is an interesting proposition, the image above seems to show one channel going even further; while cheerfully claiming "fair use" "protection" for itself, it threatens legal action against anyone using "any part" of its video.

Success, fair use and lawsuits

With a lot of hard work and even more luck, these channels could one day enjoy the same success as the famous H3 Podcast. Created by Ethan and Hila Klein, the channel has over 2.93 million subscribers and nearly 1.2 billion views.

Not only are the Kleins experts at creating a brand and popularizing their work, they're also well versed in copyright law, and in particular fair use. Unfortunately, this hasn't stopped them from being sued; in the last seven years or so, at least three years have been spent defending copyright infringement lawsuits.

The Kleins emerged victorious from a lawsuit in 2017 after presenting a successful fair use defense. It hasn't been without its traumas; copyright lawsuits can be extremely costly, and the Kleins' lives might have taken a different turn if fans hadn't donated 170,000 for their defense.

119 seconds of boxing, 124 weeks of litigation (and counting)

It's not uncommon for H3 Podcast to tackle current events, offering the kind of commentary and criticism that allows limited use of copyrighted content without the need for prior permission. In April 2021, following Jake Paul's 119-second KO of former UFC fighter Ben Askren, H3 Podcast called the fight a "disaster" in a YouTube video, accompanied by excerpts from the fight to back up their words.

Event promoter Triller responded with a copyright infringement suit seeking $50 million in damages. Four months later, H3 Podcast's lawyers filed an extremely detailed motion to dismiss, probably at considerable cost.

If "fair use" immunity statements on YouTube really worked, H3 Podcast wouldn't be spending money to defend the use of an excerpt that represents only a fraction of a four-hour show. It's true that things got a little complicated when Ethan said on the show that he hadn't actually paid for the fight.

Indeed, the excerpt shown in the YouTube podcast was actually a pirated copy that Ethan had uploaded to another YouTube channel as an unlisted video. Of course, Triller's legal team seized the opportunity to apply further pressure.

Does a URL in a video constitute copyright infringement?

With a slight change of tactics, Triller declared that he had no interest in stifling H3's comments and criticism in a video that had already generated a million views. Triller even suggested that under slightly different circumstances, the fight clip shown in the commentary video could have been shown legally, if not for the defendants' "negligence, willfulness or malice, or some combination thereof".

The image below shows a screenshot of this video, with the offending information hidden.

The fact that the URL of the unlisted video appeared in H3's commentary video (the "distribution video") allowed Triller to claim that the video facilitated violations by those watching the fight on the unlisted channel, which relied on H3's directly faulty upload.

Decision on motion to dismiss H3

With the trial now in its third year, the court has just ruled on a motion to dismiss filed by H3. One aspect of this motion argued that Triller's allegations fail because the unlisted fight video had been "corrected" after it was broadcast. The court found that since Triller claimed that H3 had a copy of the video, but was not on the list of people authorized to obtain the broadcast, at this stage the company's allegations are sufficient.

Managing the URL in the unlisted video, which appeared in the commentary video without being hidden, went as follows:

The defendants made the unlisted video independently accessible by displaying its URL in the distribution video. Anyone with this URL could access the unlisted video. At the time of writing, it appears that the unlisted video had been viewed 65 times.

Although the URL was displayed in small print in the distribution video, and no one encouraged viewers to watch the unlisted video or read the URL, the URL was visible. The distribution video was viewed over a million times, far more than the unlisted video.

However, drawing all reasonable inferences in Plaintiff's favor, and recognizing that evidence of Defendants' alleged intent is not to be considered when reviewing a motion to dismiss, the allegations of the [Second Amended Complaint] are sufficient to permit an inference that Defendants created the Unlisted Video and made it publicly available for reasons unrelated to critical commentary on the Distribution Video.

In conclusion, the motion to dismiss was partially denied and partially granted, meaning that the case will continue. For how long, it's unclear, but for YouTubers preparing their next opposition to a copyright claim, there's plenty of food for thought.

It's convenient to claim that the use of copyrighted content is "fair", but that doesn't necessarily mean that it is. Even in cases where everything seems to point to a recognition of fair use, there's nothing to prevent a rights holder from suing, there's no obvious time limit for finding out who was right, and there's no miraculous way of paying lawyers' fees.

Millions of people rely on fair use every day, but it's a legal defense to be invoked sparingly, not a YouTube magic spell to be used daily.

The decision on H3's motion to dismiss is available here (pdf)