YouTube copyright dispute leads to creation of fair use protection fund

A lawsuit against the administrators of YouTube channel h3h3Productions for alleged copyright infringement has led to the creation of a general fund to protect fair use on YouTube.

The two hosts of h3h3Productions, Ethan and Hila Klein, speak about the charges themselves in a YouTube video. The two had made a reaction video in which they showed images uploaded by another YouTuber and gave their own reaction to it. Three minutes of footage came from the subject and the remaining 11 minutes from the presenters themselves. Subsequently, the subject of the video, YouTuber Bold Guy, hired a lawyer and took the two to court for copyright infringement. Among other things, he demands that h3h3Productions pay fees, keep the video permanently offline, link to other Bold Guy videos and advertise him.

The husband and wife of h3h3Productions are convinced that their approach, however, falls under the American fair use law. According to the two, YouTube itself says it can do nothing to assist them. The two do not want to set the precedent that a YouTuber can be intimidated on the basis of a copyright claim and so have the case go to court. To date, the two have been assisted free of charge by specialists from law firm Morrison/Lee, but in the long run, according to h3h3Productions, a maximum of $100,000 will be needed to pay for their defense. If they lose the case, that would be even more so. However, the two do not ask their viewers for donations.

Another great YouTuber, Philip DeFranco, wanted to help the two financially. He set up a GoFundMe page where, thanks to a lot of attention on Reddit, among other things, donations poured in in no time. At the time of this writing, the counter stands at $145,000, much more than h3h3Productions probably needs. Donations come from major YouTube figures such as PewDiePie and Markiplier, as well as video game developers Markus ‘Notch’ Persson and Garry Newman. In addition, nearly 6,000 other people have donated. The promotion is currently running for approximately 48 hours.

The two lawyers for Morrison/Lee and h3h3Productions have therefore decided that the money will be put into a general fund intended only for such allegedly wrong copyright cases on YouTube. Every YouTube user can theoretically claim that. Morrison and Lee then stand up for the injured party and they are paid out of the fund called the Fair Use Protection Account, also known as FUPA. H3h3Productions itself has also invested $5,000 in the fund.

A jury will probably have to decide whether the video of Ethan and Hila Klein actually falls under fair use or not. The issue has attracted so much attention on Reddit, for example, because the rules about fair use leave room for different interpretations depending on the example being used. So the ruling on this is likely to set a precedent that will affect all similar lawsuits and other disputes that follow.

It regularly happens on YouTube that videos are taken offline by copyright holders because they are not happy with what the creator of the video has done with their content. This while these videos should often be protected by fair use legislation. In the past, this problem has also been raised on a large scale with YouTube in the form of the Where’s the fair use? campaign. YouTube head Susan Wojciki responded at the time and promised that YouTube will take steps to improve the situation, but things like this still happen.