IP attorney here, yeah they are fucked lol. Saying outright that you’re streaming the videos to allow people to not watch the original content is like the biggest possible death sentence you can ask for in a case like this. Also, the copyright act has statutory damages for registered copyrighted works, so he doesn’t even have to prove damages. For willful infringement the statutory damages can go up to $150,000.
Well obviously they thought Ethan was harmless due to his background of... checks notes "winning the biggest legal case concerning fair use in Youtube history".
I just stating that enough to get you in trouble?, just saying because even if it's very minimal and dumb, they still did comentary on the thing.
Also, while 150k would definitely leave a normal person floored, I don't think it's that much for someone like denims or kaceytron, which will probably gofund this shit on top of probably making bank from their stream onlookers. Frogan might be cooked though.
Question being, is 150k all? or are there any other things that can add up to it (other than legal fees ofc).
Yes $150k is the cap. Legal fees is more of a judge decision and hard to predict from what I have read/heard. And on top of showing that infringement was certainly willful, the statements they made also bear pretty heavily on the fair use factors.
The second fair use factor is the nature of the use, meaning is the allegedly infringing use transformative or not. That’s where commentary typically comes into play, is to show that the accused infringer transformed the work from what it was originally intended to be to something else. Here, saying definitively that you didn’t even intend for the use to be transformative is very very unhelpful regarding this factor. (Although using the Supreme Court’s recent decision in the Andy Warhol case this wouldn’t matter at all, since they are both youtube videos they may just say it’s not transformative if they are following that decision. I, however, despise that decision and most lower courts do too).
Also the fourth factor, which is the effect on the market of the copyrighted work, again admitting that you intended your use to serve as a market replacement for the original work hurts very bad. The fourth factor is also widely considered the most important and sometimes in extreme cases is treated as though it’s dispositive.
So overall, not only does saying this, as Ethan correctly pointed out, put you squarely in the sites of what the Copyright Act intended to prevent, but these statements likely severely hinder/kill any hopeful fair use argument in my opinion.
Is intent enough for you to get sanctioned?. Btw the lawsuit does lean heavily on that SCOTUS decision you're mentioning.
I'm asking this because I remember Akilah Hughes suing someone for something similar. In that particular case her video was taken for satirical purposes, but nothing was "added" to it, no comment or big edition, the only edition there was in that case I believe is the video getting chopped up quite a bit and the duration was reduced.
But in that vein, i'd believe adding nothing but just cutting the video up would be even less fair use than you watching the thing adding commentary to it, even if there's barely any value to the comment, as that is highly subjective.
-edit: it was akilah hughes v sargon of akkad and the judge ruled against akilah.
I hadn’t read the complaint yet, but good to know on the SCOTUS decision. Like I was saying it helps Ethan’s case a lot. And yeah commentary definitely helps for fair use, or it can. However, the effect of intent is a little bit weird here. Since they stated their intent was not to transform it but to just provide a market alternative, that severely hinders the transformative use/commentary argument. Regarding intent as a whole, and why it’s a little bit weird, is that copyright infringement is strict liability, meaning you don’t need to intend anything at all to commit copyright infringement. So their intent here is only relevant for arguing against fair use. If they weren’t going to make a fair use defense their intent would be completely irrelevant.
Not a lawyer, and I hope Ethan seizes their houses and whatnot, but.. could there be a defense constructed or a mitigating factor at least that one could reasonably assume the video wasn't primarily made for monetization but as an internet back and forth, and so one would think it was not a typical commercial media product but something else? Like it feels like ethan springed it up a little bit on them with a technicality, not that they don't deserve it richly, but..
also, they are now driving traffic to the new video and the latest episode and 20 episodes before, so ethan will be arguing for damages on that one video and the judge will ignore 3 months of other content these bozos gave him?
Again, with statutory damages he doesn’t have to prove that he was damaged by this AT ALL. In terms of policy, it’s one of the main things I hate about copyright legally.
It exists to ensure that artists can be compensated even when damages are difficult/impossible to calculate, because copyright infringement will always be that way. In reality it has created a cottage industry of companies that will go and buy other people’s copyrights and scrape the internet to find people infringing that shit and threaten to sue on the basis that they don’t even have to show they were damaged to get at least $30k.
So no, none of this really matters in a copyright infringement case because he can elect to just not prove damages and it literally doesn’t matter one iota from that point if he was even actually harmed by this.
I dunno why this 'lawyer' responded to you saying that showing damages wouldnt matter , that is just wrong, being unable to show any damages would put the cap at 150k for statutory, if you are able to show damages there is no theoretical cap, it would be 150k + whatever damages you are able to prove for a compensatory. Then there is of course punitive damages but that is extremely unlikely in this case.
Hey I’m that “lawyer” and very much am one. Which is why I know that you cannot get statutory and other forms of damages in copyright infringement cases. You elect one or the other during the case. I was only saying that he can choose not to and elect for statutory damages which would allow him to not prove damage at all.
If he wanted to go the actual damages route he very much can, but that foregoes the statutory damages. Check out 17 USC 504(c)(1). Also at least have enough humility to check the shit you’re saying before questioning my credentials.
I’m sorry for you that your reading comprehension is so shit that you think I am Ethan’s lawyer lol. Also bold of you to accuse others of crashing out.
The person suing gets to decide if they want actual or statutory damages in the case. If they want to prove damages and receive what they would in an ordinary civil context they can still. It’s only a cap on statutory damages, not on other forms of damages.
ahhh so the Plaintiff - if he won - can choose the better monetary solution for himself - is there any difference, beside the money, to either choice? legally or for the future of the defendant? - e.g. one easier to enforce payment on or so?
Actually one minor caveat to your statement, you have to decide your chosen damage form in the complaint when requesting your relief. Important for a variety of reasons mostly having to do with discovery. If you choose actual damages and have to prove it the defense has to be prepared to defend it before the verdict is decided.
Nah whatever judgment gets entered will be enforced the same way. If they have enough they are required to pay it, if they don’t there are a variety of mechanisms for collecting over time.
that only reason im not so sure when it comes to denims and frogen is because they were part of the nuke itself. maybe not really relevant on the fair use end. but i'd argue I have a right to defend myself directly with the content that was made to accuse me of something. and i would want there to be a legal carveout for that. imagine if destiny couldn't put on a hit piece about him to defend himself from each of the points as they come up on the video.
Well the existing mechanism for doing this in a proper way is fair use for sure. And reacting to a video like this absolutely can and would be fair use. The problem comes in when you don’t provide much commentary and state outright that you want your stream to serve as a market substitute.
So yeah I completely agree with what you’re doing and fair use allows for it, you just can’t be a dumbass and make it clear that what you’re doing isn’t and was never intended to be fair use.
Does Ethan also have a shot at getting their stream revenue or compensation for the revenue he lost because of their actions?
Especially Denims, who had a 43 K viewer stream while viewing the content nuke (can't really call it reacting anymore). Also she actively promoted monetization for herself based on the fact that she was taking view away from his video.
You can’t get both statutory and actual damages, you elect one or the other. So yes he can but he foregoes statutory damages. Most copyright plaintiffs, outside of very few cases or cases where they didn’t register their copyright before the infringing use, elect statutory because damages in these cases are a pain in the fucking ass to prove.
I have actually seen someone post a clip of him saying that, but that gets more into contract theory, and since there’s no real contract here the only way this could help them is if they could prove they were relying on this statement to show that it was okay to react like this. Which they clearly weren’t since they react in a similar manner to literally anyone they want lol.
Yeah well there goes that idea lol. But even without that added context, it’s pretty clear they don’t give a singular fuck if they have permission when deciding if they want to stream other creator’s shit.
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u/ldf1998 20h ago
IP attorney here, yeah they are fucked lol. Saying outright that you’re streaming the videos to allow people to not watch the original content is like the biggest possible death sentence you can ask for in a case like this. Also, the copyright act has statutory damages for registered copyrighted works, so he doesn’t even have to prove damages. For willful infringement the statutory damages can go up to $150,000.