Yesterday, much of the internet rejoiced as word came down that Ethan and Hila Klein, better known as H3H3, had emerged victorious in their lawsuit against Matt Hosseinzadeh, better known as “The Bold Guy”.
The case has been one of the most intensely-watched lawsuits in recent copyright history. Not only because it deals with issues of fair use, criticism and Youtube, but also because it pitted two of the internet’s most beloved YouTubers against an antagonist seen as trying to stifle their free speech.
But while yesterday’s ruling is a big deal, it’s not quite the end of the lawsuit as many have made it out to be, there’s still more to think about and watch.
So, what exactly happened, what does the lawsuit mean and what is the future of the case? While I will make a video on it shortly, I wanted to take a moment to write down what this case and this verdict likely means for creators everywhere.
The History of the Case
On February 15, 2016, the Kleins posted a video on YouTube entitled “The Big, the BOLD, The Beautiful” (link points to reupload). The video was a criticism of a video by Hosseinzadeh, which featured him as his character “The Bold Guy” attempting to pick up women.
The Kleins’ video featured short clips of Hosseinzadeh’s video interspersed with their reactions, criticisms and various jokes that mocked the original work.
On April 23, 2016, Hosseinzadeh filed a Digital Millennium Copyright Act (DMCA) takedown notice against the video, requesting its removal on copyright grounds. YouTube complied but the Kleins quickly responded by filing a counter-notice-requesting that YouTube restore their video. Without a lawsuit, the video would have been restored within two weeks.
Three days after that counter-notiice Hosseinzadeh filed a lawsuit against the Kleins, which prompted the duo to post a video about the case entitled “We’re Being Sued” on May 24, 2016. Three days later, Hosseinzadeh filed an amended complaint adding defamation allegations to his lawsuit based on the content of that video.
Shortly after this, there was an outpouring of support for H3H3. This led fellow YouTuber Philip DeFranco to launch a GoFundMe in support of the Kleins, which raised more than $170,000 for their defense. That amount was then dedicated to the Fair Use Protection Account (FUPA), which was set up to protect all YouTubers, not just the Kleins, from attacks on their fair use.
But after the initial firestorm, the lawsuit sort of languished. Though H3H3 filed a motion to dismiss in June, it was denied. This gave both sides a chance to seek discovery and prepare motions for summary judgment, which both sides did.
Yesterday, the judge ruled on those motions for summary judgment and sided completely with the Kleins, ruling their use to be a fair use, dismissing allegations of misrepresentation with the Kleins’ counter-notice and even dismissing Hosseinzadeh’s defamation claims.
In short, it’s a complete win for H3H3 and a complete defeat for Hosseinzadeh and his arguments.
Where Do We Go From Here?
While the summary judgment is a strong rebuke of Hosseinzadeh and his arguments, the case isn’t quite over yet, specifically, there are two questions that need to be answered:
- Will Matt Hosseinzadeh appeal the ruling?
- Will H3H3 receive attorney fees?
Both of these questions are extremely important. The first discusses whether the lawsuit is truly over and the second speaks volumes about the future of similar lawsuits.
To the first question, Hosseinzadeh has the right to appeal the summary judgment if he so chooses. That appeal would go to the Second Circuit Court of Appeals but, considering the strong language in the ruling, the odds of success are against such an appeal. Despite that, such an appeal could be a way to drag out the lawsuit for another year or more.
Furthermore, such an appeal would drive up costs on both sides of the lawsuit, making such an action undesirable on both sides, unless Hosseinzadeh had a real belief he could win on appeal.
The second question, however, will be the more important long term.
The Kleins have suffered a great deal under this lawsuit and one of the biggest pain points has been their legal fees. Despite the FUPA and other funds, the duo has still be strained by the costs of the legal battle.
In February 2017, they discussed how they racked up more than $50,000 in legal fees in under one month. The case has been expensive for them and, without the support of their fans, they would not likely have been able to continue it. Early in the dispute, Hosseinzadeh demanded just $4,000 to settle the case, making that by far the more economical approach to ending the dispute.
Under the law, the court has the option of awarding attorneys fees and other costs to the Kleins. However, as the Beastie Boys case showed, such fees are not guaranteed and, even if they are awarded, they may not cover all of the costs.
If the court decides not to award fees, awards in adequate fees or if the Kleins are unable to collect on the fees, it could still have a strong impact on future cases.
After all, other than the principle of the case, why should the Kleins have spent hundreds of thousands of dollars to fight this lawsuit when they could have settled it for just $4,000? Without attorneys fees, even this solid victory could be a significant loss for future cases, especially when the defendant doesn’t have the resources to fight.
In short, without such fees being awarded, a legal victory for fair use could become a practical defeat for it. This means that there are some very important fights yet to come in this case.
Though H3H3 won the summary judgment, the lawsuit is far from over. Without attorneys fees, the victory is a pyrrhic one at best. If it’s not practical for others to follow in their footsteps, the Kleins might not carve out a new path at all.
So, while the summary judgment is a great victory for the Kleins, it’s not an end to the lawsuit or the issue. Fair use on YouTube is still very much in danger and it may still be possible for those like Hosseinzadeh to bully others into submission.
Despite that, for supporters of fair use, this is definitely a significant victory. It’s just that the understandable celebration needs to be tempered with an understanding that the case isn’t quite as over as many are making it out to be.
To that end, it’s very likely that Hosseinzadeh will agree to drop the appeal in favor of avoiding attorneys fees. If this happens, it would be a split decision that would still leave a great deal about this case in doubt when it comes to the practical implications.
Still, a strong court ruling favoring fair use on YouTube should not be undersold. This is an important victory and one that could have a drastic impact on the future of the platform.