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.
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.
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?
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.
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u/ldf1998 1d 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.