The Future of Fair Use

On April 17, 2021, Internet celebrity Jake Paul went face-to-face with professional martial artist Ben Askren in a pay-per-view boxing match.  Fights between Internet creators and established boxers have grown in popularity during the last few years, and over one million people paid to watch the Paul vs. Askren fight, with even more Internet users tuning in via illegal streaming services [1]. These illegal watchers extended the importance of the match beyond Mr. Paul’s winning gold belt; a lawsuit stemming from the feud concerning copyright infringement could define the future of fair use for Paul and countless other creators that share his digital space. 

Coverage of the fight sparked controversy concerning what constitutes fair use.  Fair use is a legal doctrine in United States law that allows for the copying of copyrighted material without the copyright holder’s permission [2].  Much of what the ordinary citizen does on the Internet is protected by fair use; it supports parodies, commentary, satire, remixes, ​​news reporting, teaching, scholarship, and research [3].  Fair use not only protects one’s favorite Internet creators but also ensures the rights of every Internet user who utilizes copyrighted material [4]. Although fair use currently protects a myriad of online activity, its application to cyberspace is in no way stable.  A case that protects fair use on Youtube — Hosseinzadeh v. Klein — is now being challenged by a new filing: Triller Fight Club II LLC v. The H3 Podcast.  It is critical that the precedent in Hoss v. Klein be upheld in this new case to preserve the security of First Amendment rights in the ever-growing and increasingly influential digital sphere. 

Copyright law is difficult to apply to the Internet since it is an evolving space.  Patrolling digital spaces relies on thinly stretched support systems and individual reports that often come from biased sources.  One of the first big lawsuits to shape the application of copyright law to the digital sphere was Hosseinzadeh v. Klein in 2017.  In this case, Matt “Hoss” Hosseinzadeh filed a suit against Ethan and Hila Klein for copyright infringement (and, later on, defamation related to the case) [5].  Klein had used three minutes and forty-five seconds of Hoss’s content in a commentary Youtube video [6].  Hoss viewed this as copyright infringement while Klein claimed that his work was protected by fair use [7].  Both parties were “Youtubers,” or people who make a living off of the creation of Internet content, so they had a great stake in the outcome of this case. 

This case marked a unique moment in Internet history; it challenged traditional legal understanding of cyberspace.  Hoss v. Klein looked at the Internet through its own terms; Internet jargon such as “Cringetube,” “Parkour,” and “reaction videos” were placed beside legal wording without being deemed the lesser [8].  It also addressed how “the heart of the fair use inquiry” is whether the use is “transformative” [9].  Since Klein’s video was a response to, instead of a reproduction of, the original Hoss video, the U.S. District Court for the Southern District of New York held it was transformative and constituted legal fair use. 

Although take-down notices and various copyright-related cases had gone through the courts before 2017, Ethan Klein’s popularity on Youtube brought copyright law to the forefront of the Internet’s mind.  Hoss v. Klein proved that fair use is a powerful check against copyright lawsuits on the Internet.  Simply using another piece of content in your own work does not qualify as copyright infringement.  This distinction is important because much of what we see on the Internet is transformative work.  Youtube commentary, Tweets with music playing, Instagram photos of books, and many more types of content on the Internet were strongly supported by the Court’s holding in Hoss v. Klein. 

Yet, Klein’s success in Hoss v. Klein is a fragile one.  Klein’s H3 podcast is currently being sued again by Triller Inc., for illegal coverage of one of its fights [10]. Triller Inc., distributed the aforementioned pay-per-view Jake Paul vs. Ben Askren boxing match in April, 2021.  Soon thereafter, Triller pursued over $100 million in damages from a variety of illegal streaming sites that showed the fight [11].  Most of these filings were quite routine since illegal streaming is a straightforward violation of copyright laws [12].  The curiosity was Triller’s inclusion of the H3 Podcast in these filings.  While the other streaming services included in the suit showcased the fight in its entirety, the H3 Podcast aired a mere forty-five seconds of the fight with the hosts’ commentary over it. 

Triller claims that H3 is responsible for $50 million in damages [13]. The company dropped its suits against many streaming services and now has taken a relentless focus on Klein’s H3 Podcast as well as his wife’s company Teddy Fresh Incorporated.  Klein may seem like an obvious figure to go after; he is known for speaking out directly about suits and not taking a quiet approach to disputes.  However, Klein also has the Hoss v. Klein case protecting him.  If the Triller case overturns the precedent set by Hoss v. Klein, then it could become a defining moment for the Internet by putting fair use’s place into question. 

Fair use is vital for everyday life on the Internet.  If, for example, one could not use another’s work, many of society’s favorite news podcasts and channels would cease to exist. Restricting fair use also gives rise to a new threat of companies relentlessly pursuing smaller creators who do not have access to the resources that Klein or other big “Youtubers” have.  If Triller’s current complaint is successful, the company could drive certain creators away from commentating on their content.  Triller’s suit could thus set a dangerous precedent that would interfere with society’s First Amendment-protected freedom of speech [14].  Fair use is essential for the protection of First Amendment rights, for the protection of artists, and for the protection of everyday Internet life as we know it. 

Of course, the safeguarding of fair use should not come without its limitations. Although fair use is vital to protect transformative content, it can threaten the original creators if their work is only slightly transformed when reused.  The main problem is that the qualifier “transformative” can be ambiguous: it is unclear how much of a past work can be reused without the new piece constituting primarily a reproduction.  The two cases overviewed include widely different amounts of the copyrighted work: in Hoss v Klein, three minutes and fifteen seconds of the Hoss video were used in Klein’s fourteen minutes piece, whereas in Triller v. H3, forty five seconds of the fight were used in a two hour podcast [15].  They also include different amounts and kinds of critique and commentary by Klein.  Deciding the transformative status of one video cannot necessarily predict the status of others.  This issue of the law’s ambiguity extends beyond copyright issues; it reflects the larger problem of a broad legal rule being unequally applied to individual cases. 

Although fair use is hard to define, there is almost no doubt that its protection is vital to the future of the Internet ecosystem.  Hoss v. Klein shows that fair use has stood its ground in the legal world for five years.  The decision to be made at the end of the Triller v. H3 could go on to define another half-decade of Internet life. 

References

[1] Netherton, Alexander. “How Many People Bought the Jake Paul vs. Ben Askren Pay-per-view?” Dazn News, April 19, 2021. Accessed October 9, 2021. https://www.dazn.com/en-US/news/boxing/how-many-people-bought-the-jake-paul-vs-ben-askren-pay-per-view/rkox91agxnp2zmjoa8zek9go

[2] “What Is Fair Use?” Copyright Alliance, Accessed October 9 2021. https://copyrightalliance.org/faqs/what-is-fair-use/. 

[3] “More Information on Fair Use.” Copyright.gov, last modified May 2021. Accessed October 9 2021. https://www.copyright.gov/fair-use/more-info.html. 

[4] “Five things you should know about ‘fair use.’” The University of Michigan Record, February 20 2017. Accessed October 9 2021. https://record.umich.edu/articles/five-things-you-should-know-about-fair-use/.

[5] Hosseinzadeh v. Klein, 276 F. Supp. 3d 34 (S.D.N.Y. 2017).

[6] Ibid.

[7] Hosseinzadeh v. Klein, No. 16-CV-3081 (S.D.N.Y. Aug. 23, 2017). 

[8] Hosseinzadeh v. Klein, 276 F. Supp. 3d 34 (S.D.N.Y. 2017).

[9] Ibid.

[10] Asarch, Steven. “Triller is suing Youtuber Ethan Klein’s podcast for $50 million, claiming he illegally distributed Jake Paul’s fight.” Insider, May 12, 2021. Accessed October 9, 2021. ​​https://www.insider.com/triller-h3-ethan-klein-lawsuit-sues-distributing-jake-paul-fight-2021-5.

[11] Chan, Clara. “Triller Files $100 Million Lawsuit Over Piracy of Jake Paul’s Fight.” The Wrap, April 26, 2021. Accessed October 9, 2021. https://www.thewrap.com/triller-piracy-lawsuit-jake-paul-boxing-match/. 

[12] Congress.gov. "H.R.133 - 116th Congress (2019-2020): Consolidated Appropriations Act, 2021." December 27, 2020. https://www.congress.gov/bill/116th-congress/house-bill/133. 

[13] Triller Fight Club II LLC v. The H3 Podcast, CASE NO.: 2:21-CV-03942.

[14] U.S. Const. amend I. 

[15] Hosseinzadeh v. Klein, 276 F. Supp. 3d 34 (S.D.N.Y. 2017).