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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  1. 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.


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