Why the H3H3 YouTube victory could mark a major turning point for the site

Ethan and Hila Klein, the married couple behind the enormously popular YouTube channel h3h3Productions have emerged victorious in a legal battle over YouTube conduct that threatened to leave them bankrupt. In a ruling that has huge implications for the way YouTubers operate, judge Katherine B Forrest confirmed that a reaction video uploaded by the duo – which shared their response to a fellow YouTuber Matt Hosseinzadeh’s video – did not constitute copyright infringement.

The Kleins are famed for their reaction videos, which involve the couple lampooning fellow YouTubers’ content, from questionable prank videos to pseudo-social experiments. Such videos, like the one mocking Hosseinzadeh, often include cutaway clips to other users’ videos, followed by dissection and commentary. Hosseinzadeh, unimpressed with the scornful coverage, filed a lawsuit against the Kleins in 2016, accusing them of copyright infringement and defamation.

The ensuing legal battle, which threatened to bankrupt the couple, was subsidised by YouTube creator Philip DeFranco, who raised more than $170,000 (£132,000) to help cover their legal costs. The latter warned: “If they are bullied and drained of funds because of this ridiculous lawsuit and/or they lose this case it could set a terrible precedent for other creators.”

In a victorious ruling, Judge Forrest ruled that the Kleins’ use of Hosseinzadeh’s clips constitutes fair use: “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,” she declared.

The ruling sets an important precedent for YouTubers who borrow from or allude to others’ content. Forrest, however, was keen to stress that it wasn’t a blanket ruling on reaction videos; there are nuances to such content, which often traverse the realms of copyright infringement. Some videos, she stressed, combined commentary with the clips, whereas others were “more akin to a group viewing session without commentary”. “The Court,” she thus concluded, “is not ruling here that all ‘reaction videos’ constitute fair use.”

Meanwhile, Forrest also threw out a libel lawsuit that Hosseinzadeh had attempted to impose on the Kleins, which accused the duo of defaming him in a YouTube video about the lawsuit. “It is clear that defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law,” came Forrest’s pronouncement.

The ruling constitutes a triumph not just for the h3h3 team, but for fair use on the video-sharing site, putting thousands of potential infringers in the clear. Ethan Klein tweeted that the decision was a “huge victory for fair use on YouTube”.

The pair also re-uploaded the video that started it all, accompanied by the message: “Please enjoy our creative property, a parody of MattLossZone’s Bold Guy 🙂 This is the video we were sued for, please enjoy this re-upload.” The jubilance was palpable – and heartily well deserved.

The landmark ruling can be read in full here.

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