H3H3/Ethan Klein Sues Three Reaction Streamers

Ethan Klein, better known for his YouTube channel H3H3Productions (H3H3), has filed a copyright infringement lawsuit against three streamers, accusing each of them of copyright infringement.

In a video posted to his channel last week, Klein explained that he was targeting three streamers, Frogan, Kaceytron and Denims. He accuses all three of infringing his video entitled Content Nuke – Hasan Piker. 

According to his video, Klein created the Content Nuke video knowing that at least some streamers would create reaction videos in response to it. He claims that he chose the three in question based on the egregiousness of their alleged infringement and their statements surrounding it.

Specifically, he was seeking streamers who not only streamed his entire video but also offered minimal commentary and made statements indicating that they were deliberately trying to deny Klein views.

By carefully selecting his targets, Klein has made a reasonably strong case that these streams were not fair use. One of the defendants, Frogan, has already deleted her Twitch videos in response to the lawsuit. 

However, fair use is not the only topic of discussion. There are many other issues at play, and much of it comes from Klein’s history. Specifically, it comes from when he was on the other side of the litigation. 

Nearly a Decade of History

To understand the history of Ethan Klein, we must first examine the history of the “reaction channel/video” controversy. 

In early 2016, YouTubers began to complain about “reaction” channels. However, the term covers a wide variety of sites. Some use short clips from the source material and focus heavily on their original commentary. However, others feature a creator “reacting” to other people’s content, while including all (or nearly all) of the original material with minimal additions.

H3H3 was heralded as being a reaction channel doing things the correct way. However, that did not stop them from being sued in May 2016. Fellow YouTuber Matt Hosseinzadeh alleged that one of H3H3’s videos infringed on his copyright.  

The internet rallied around the Kleins, raising over $170,000 for their defense fund. In August 2017, a court granted summary judgment to the Kleins, bringing the case to a close. 

In May 2021, Klein was sued by Triller, who alleged H3H3 had committed copyright infringement by using clips from the Jake Paul vs. Ben Askren boxing match. That case (and the others that spun off from it) were settled in August 2024. The terms of the settlement were not disclosed.

In December 2021, Klein announced that he intended to sue the Korean media company MBC. This came after MBC filed a copyright notice against his podcast, though Klein says he only used short clips. It is unclear whether that lawsuit was filed. 

In short, Klein has been a party in multiple copyright disputes. However, he has always been the one facing allegations of infringement. Why has the script flipped now?

On the Other Side

According to Klein, the difference between his earlier cases and this one is simple: The streamers took too many liberties with his content.

In all cases, he says the streamers played his entire video, offered little commentary, and also made statements saying they were deliberately avoiding supporting Klein’s work.

To that end, he makes a powerful argument against fair use. The recent Warhol ruling makes it clear that simply arguing a use as “transformative” does not automatically make it a fair use. However, even if we were to use pre-Warhol standards, making statements about the stream being a way to view the video without supporting H3H3 would undermine that argument.

If you examine the fair use factors, the first and fourth factors consider whether the new use is transformative and the potential impact on the market for the original work. They are widely considered the most important of the four factors.

Making a statement saying that you are acting as a substitute for the original and deliberately trying to deprive the creator of revenue destroys any argument they may have had. 

In response to the challenges facing the fair use argument, some have pointed to a previous clip of Klein stating that he is “opening our IP to the world” and allowing others to make commercial use of his content.

However, that ignores the fact that he clarifies that full reuploads are still not permitted. Also, it seems unlikely that a court would treat this as an implied license, without some other, more concrete action.

In short, Klein has a reasonably strong copyright infringement case against these specific creators. However, that’s probably not why so many are upset.

A Problem of Perception

Disclosure: Outside of the various copyright cases, I have not followed H3H3 or any of the other YouTubers or streamers involved. So, while I am aware of the animosity between the parties, I am not familiar with its history.

From the earlier battles, Klein (and H3 more broadly) became famous for his support of fair use. He was seen as a champion for the cause and was hailed as a hero for defeating a fellow creator who had attempted to use a dubious copyright claim to silence criticism.

However, here Klein is playing the opposite role; he is the one suing his critics.

Although Klein says he did not choose his targets because of their stance, all three are longstanding critics of his work and opinions.

He also claimed that he created the video to bait others into doing precisely this. This has led some to accuse Klein of entrapment. However, entrapment isn’t a defense in civil cases. Ignoring that, Klein did nothing more than create a desirable video and register it in a timely manner with the US Copyright Office. 

Knowing that the video is likely to be infringed isn’t entrapment. Likewise, choosing the three cases you believe to be the strongest isn’t selective litigation. 

The biggest issue that Klein has is one of perception. He earned much of his name and reputation fighting those who wielded copyright to silence his criticism. Now he’s using copyright against his critics. The fact that his lawsuit and claims are much more substantial doesn’t change the optics.

Klein is, most likely, in the legal right here. However, his history and the animosity between the parties make this case complicated from an optics and ethics standpoint.

Bottom Line

Legally, I feel confident that Klein is in the legal right here. He targeted these cases very well and picked streamers who went out of their way to harm their cases. I would be surprised if these cases aren’t quickly settled.

That said, I don’t think these lawsuits will have a significant impact on YouTube or the streaming industry, even among reaction channels. The reason is that these lawsuits are very fact-specific. All three clearly stated that their goals were to avoid giving Klein any support. 

Still, it is unusual to see Klein, who is famous for being sued by his critics, suing them in return. He’s renowned for his support of fair use, but is now arguing that these are not examples of fair use.

To be clear, he is right. This showcases the nuance of reaction videos. Some are considered fair use, while others are not. It depends on the specifics of each case. The term “reaction video” is simply too broad an umbrella term to mean much when it comes to fair use.

But nuance is not something that the internet handles well, especially when tempers are already flared. Still, it’s easily a situation where Klein could win the legal war, but pay in other ways.

Whether these lawsuits are worth it will, most likely, be the most critical question to answer in the long run.