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.

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  • icon
    Chris ODonnell (profile), 24 Aug 2017 @ 12:34pm

    As long as lawyers keep taking these hopeless cases they'll keep happening. And since there seems to be no downside at all for the lawyers, I expect to keep reading about these cases on Techdirt for years to come.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 1:25pm


      You know reading this that's what I took away from this as well. I was reading this and thought "Fuck that lawyer!" Any lawyer with experience at all with copyright shouldn't have even considered taking an obvious fair use case. This was a frivolous lawsuit and lawyers that file them should face consequences for their actions.

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 24 Aug 2017 @ 5:27pm

        Re: Re:

        I disagree.

        Lawyers do not bring law suits, plaintiffs do.

        If a lawyer tenders their expert advice that the case is a loser, and that their client might have to pay the legal fees of the defense, but their client wishes to proceed anyway, why would they decline?

        The plaintiff has the right to be heard, has a right to bring even frivolous cases before the court, and has the right to be smacked down by the court for bringing a frivolous case.

        As long as their lawyers advice is sound and realistic, then the lawyer is not at fault if a plaintiff decides to ignore the legal advice and proceed to court.

        But, if the lawyer doesn't advance the likelihood of losing, of having to pay the defendants fees, then the lawyer should be sanctioned.

        reply to this | link to this | view in chronology ]

        • identicon
          Scote, 25 Aug 2017 @ 12:49pm

          Lawyers *and* plantiff's are complicit in filing of lawsuits.

          "Lawyers do not bring law suits, plaintiffs do."

          Not quite. A lawyer is not an inanimate object like a gun. While a lawyer is an advocate for his or her client, he or she is also considered an "officer of the court" and has a legal and ethical duty to not to file frivolous lawsuits and is also prohibited from suborning perjury. Unfortunately, it is all to rare to hold lawyers to these well known standards, in part because doing so could risk criminalizing legitimate advocacy, but more often, I think, out of "professional courtesy" to the legal profession, much the way "good" cops won't snitch on dirty cops.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Aug 2017 @ 1:29pm


      At least there is some sustainable movement in the jurisprudence in this case, even though rather limited.

      The emphasis of the right to claim copyright infringement if there is any "good faith" (almost impossible to disproove) argument to be made, it is still impossible to fight a strike for youtube creators without opening up for having to pay for going to court over it, which in itself is a "disparate and inequitable burden"...

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 24 Aug 2017 @ 12:36pm

    I don’t know which is better: Seeing a court ruling that upholds Fair Use or seeing a pick-up artist get figuratively smacked down so hard that he has to pick himself up off the floor.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2017 @ 12:45pm

    But on day 61....

    Tony better be ready, cause they can let him have it.....

    How stupid is this guy....?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 24 Aug 2017 @ 1:34pm

    Nice precedent here

    If it isn't the first, then it adds weight.

    The DMCA counter notice doesn't need any more than the same level of good faith belief that the DMCA notice itself requires.

    So if an RIAA member can in good faith, claim that someone's nature recordings of birds chirping is an infringement on one of their musical recordings, then it is a pretty low bar.

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 24 Aug 2017 @ 7:28pm

      Re: Nice precedent here

      Do you get precedent with summary judgments? I hadn't realized initially but, this never even made it to a full trial.

      reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 26 Aug 2017 @ 8:27am

        Re: Re: Nice precedent here

        Do you get precedent with summary judgments?

        Of course. Celotex Corporation v. Murtle Nell Catrett, Administratrix, 477 U.S. 317 (1986).

        I cannot say that most reported cases are summary judgments. However, a lot of them are. That is most likely because summary judgments present the pure questions of law which appeals courts are intended to decide.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2017 @ 1:45pm


    In the first video they talked about the uncertainty of a jury result. What happened to the jury? All I see is the decision of a judge.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 24 Aug 2017 @ 2:28pm

    Dangerously wrong

    Out of what clearly seems to be a SLAPP suit I think the most absurd part was the claim that filing a counter-notice violated the DMCA.

    I am so very glad that the judge slapped that one down, since as ideas go that one is insane and would make an already one-sided law vastly worse(which is really saying something) by setting a higher bar to challenge the removal of speech/protest your innocence than the one set to remove speech/assert guilt.

    reply to this | link to this | view in chronology ]

  • identicon
    Lurker Keith, 28 Aug 2017 @ 7:15am


    I'm a bit disappointed Techdirt didn't quote the judge's declaration that H3H3's video was "quintessential fair use". You touched on the importance, but not the language used.

    As usual, Leonard French, Actual Copyright Attorney, went over the decision almost line by line:

    reply to this | link to this | view in chronology ]

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