YouTuber Extortion? MxR Plays v. Jukin - Real Law Review // LegalEagle

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Good video. Like he points out going to court for all this stuff is probably more of a hassle money wise than its worth and (obviously dont know jeanie and henrys minds what they thought before uploading) when they made the video about the copyright invoices they said it just happened so their emotions were certainly fresh. Going forward the only way i can see them going back to normal is hiring a lawyer for the future and paying what they need to and hopefully sign one of those liability releases for future copyrights so Jukin cant bite them in the ass again. But having a lawyer for MXRs business non the less. Jukin are still dicks.. But hoping to always enjoy jeanie and henrys content because i love their chemistry and personalities and the content they put out.

👍︎︎ 11 👤︎︎ u/[deleted] 📅︎︎ Jan 15 2020 🗫︎ replies

I was shocked when he said the could be bringing in over a million dollars if everything is monetized and their Patreon. If I was making 7 figures a year I would have a lawyer on retainer and their number on speed dial. I always wondered how he paid for her med school in cash, now I know.

👍︎︎ 3 👤︎︎ u/Lord_Muramasa 📅︎︎ Jan 15 2020 🗫︎ replies

I already commented on this video a while ago. I have several points about it which I think should be addressed by a lawyer (I am a simple musician). I will quote myself here because I think those are important points and I feel the comment on youtube might get lost.

I do understand this is a very squishy situation. However I have one big problem with Jukin's claim - MxR didn't go to their page to specifically target those clips - they were shared on Reddit. This does not remove Jukin's right to claim the clip, however, Jukin didn't provide a way for anyone to know this is their clip. There is no watermark. And let's take your film example - a film has credits - the copyright holders are stated. In this case, Jukin seems to just take advantage of the fact, that there is no way to tell if this clip belongs to them. I am really curious about this and I would love a response. I hope my comment doesn't get buried.

I don't think the circumstances are favourable for Jukin and this can be a valid point in case of a potential lawsuit.

👍︎︎ 3 👤︎︎ u/phoenixofstorm 📅︎︎ Jan 15 2020 🗫︎ replies

They definitely need to watch this video, I've been trying to watch all of them and this one probably gives the most realistic and useful information. Hoeg Law also did a decent video. They should be careful about following the advice of The Quartering. While it's important for word to get out, public opinion and advice from anyone other than their OWN lawyer ultimately means nothing in terms of the law.

👍︎︎ 2 👤︎︎ u/Macarthius 📅︎︎ Jan 15 2020 🗫︎ replies

If i was him I'd bite the bullet and pay, get a lawyer and make them sign one of those Dismissal of all future claims on there already existing content. It will cost a bit of money, but its really the only way to save the channel.

This will only hurt them in the long run if they don't learn form it.

#notlegaladvice

👍︎︎ 2 👤︎︎ u/nobodiesninja 📅︎︎ Jan 15 2020 🗫︎ replies
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- The plucky YouTubers behind the channel MxR Plays, claim that they're being extorted by Jukin Media, all for uploading some reaction videos to YouTube. On the other hand, Jukin says that MxR committed copyright infringement by using their videos without permission. Who's right? Well, I have some good news and some bad news for MxR. The good news is that they might have a defense to Jukin's claims. The bad news is that they might not have a defense. I have worse news still, they might not just be liable for the $6,000 that Jukin demands, but actually $600,000 or more. And the worst news of all, there's no way to figure out which one is right until they go to court and spend potentially a million dollars on attorneys fees. So who's right in this whole reaction video debacle? Well, let's think like a lawyer. Hey, Legal Eagles, it's time to think like a lawyer because I've received hundreds of emails and DMs about this particular case and this particular video. This case has it all. A little guy who's getting pushed around, a bad guy who might be a troll, the intricacies of copyright law, huge stakes and thousands of teenage legal experts. So let me give you a quick summary of the facts as I understand them, because they're going to be necessary to make any kind of legal judgment here. A few days ago, the YouTube channel, MxR Plays, posted a video to YouTube claiming that they were being extorted. - Something called the Jukin Media. It feels kind of weird talking about it 'cause it just happened. - Apparently, a few weeks or months ago, they have been posting various reactions on their channel. They would take viral and meme video clips from the internet and the two of them, I assume that they are a boyfriend and girlfriend couple, would react to them in some ways. Sometimes it would be the man that was responding and reacting to the clip. Sometimes it was the woman in MxR, not unlike many YouTube channels that are out there reacting to various clips. Now as it happens, a company called Jukin Media, claims that the couple used clips from Jukin database. And Jukin appears to be sort of a middleman that goes about clearing rights to various viral clips. If they see that a video is trending, they'll go out and they'll reach out to the person that created the clip and they will get the ownership rights to these various clips so that they can license those clips to other people. - It used to be that they would claim your videos and take the revenue from that video, right? - Better than a strike. - And so we started, you know, removing their clips from our videos. - Of course, because we're like, okay, that's your clip, so we won't use it. - So basically, they just strike our channel now, whenever they see a clip. - Some call Jukin Media a middleman, they themselves analogize to Shutterstock, where they buy rights to various forms of media and then sell it to other third parties. Generally, you can buy a license from Jukin on their website to use their clips for $49 per clip. Some called Jukin Media a copyright troll, they specifically get viral clips so that they can extort money from other third parties. I won't make a judgment call as to whether they are doing a good thing or a bad thing for the internet. But in this particular case, it appears that MxR admit they have used various clips that belong to Jukin. I don't know if you can actually owns the rights to these clips. But for the sake of argument, let's assume that Jukin does in fact own the copyright to these various clips. In the past, Jukin has reached out to MxR and they have demanded $2,000 from the couple for the couple's use of various Jukin clips in their YouTube channel. - They email us with the bill and they charged us $1,500 per clip, that was in our videos. And so today we got hit with a huge bill of $6,000 in total. - Jukin can came back and demanded $6,000 more for the use of four other clips they didn't previously make a demand on. It was at that point that MxR went to the internet and as one does when they have a YouTube channel, posted a video saying that they were being extorted by Julian for $6,000. - So we've paid about $2,000 in total, and now we have another $6,000 to pay. And if you don't pay, then basically they'll start striking your channel. - MxR claims that their use of these videos is fair use, of course, and Jukin disputes that characterization. The stakes here are incredibly high in several respects. Number one, Jukin is asking for $6,000, which for many households, that amount of money could lead to financial ruin. But additionally, when you get attorneys involved, $6,000 is a drop in the bucket and we can be talking about hundreds of thousands of dollars here. But on top of that, still, we're talking about copyright strikes here and Jukin has threatened to issue copyright strikes against MxR, which means that with three copyright strikes, potentially MxR's entire channel could get deleted forever. - Basically go through an entire video library, most likely find is three instances of some, you know, random clip, and then they'll basically remove our channel if we don't pay them. - And we don't really have power against it. We're stuck between a hard place and a rock, so I feel like they're just constantly gonna extort us. - So the stakes are incredibly high, which by the way, is why I created a course for creators called copyrightcourse.com, to deal with this exact situation of where you are threatened with copyright strikes and what to do if you do get a copyright strike on your channel. So let's talk about this exact situation and the law that governs this potential dispute. Now, first a disclaimer, I don't know all the facts, I've gotten some of the facts from MxR, which are going to be necessarily bias. I've gotten some of the facts from Jukin, which are also going to be necessarily biased. I don't know all the facts, but one of the good things about copyright law is that often it just depends on the underlying works themselves, which we can look at and we can analyze. So let's talk about copyright law in general, and specifically the copyrights. One of the biggest myths on the internet is that if something is out there, you can use it for almost any purpose. That's absolutely not the case. If there is a clip on the internet, someone owns it, it might be hard to track them down. But that clip, whether it's a video, a sound file or a picture, they belong to someone. And the default position of copyright law is that you need permission, a license, to be able to use that underlying work, whether it's a picture or a video or what have you. However, there's an exception to that general rule, that if you use that media in a fair use way, you don't need to get permission, and you also don't have to pay a license fee. But if it's not fair use, you do have to pay and the rights holder can block you from actually using that underlying media. Fair Use is incredibly complex, even judges get this wrong and often judges say this is the most complicated portion of copyright law in all of jurisprudence. But if you go to 17 USC 107, you will find the Fair Use factors to determine whether you're using something in fair use. The Fair Use clause states that notwithstanding the rest of the copyright act, for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. And in determining whether the use made of a work in particular case is fair use, the factors to be considered shall include one, the purpose and character of the use. Two, the nature of the copyrighted work. Three, the amount and substantiality of the portion used and four, the effect upon the potential market or value of the copyrighted work. So let's talk about that really quickly. So the first part of this section of the Copyright Act says that, generally things that are for the purpose of commentary and criticism can be considered fair use. Now that's not dispositive. But in order to get to the rest of the factors, you generally need a purpose that is recognized by the Fair Use statute. Now that's not an exclusive list of the things that qualify as fair use. But for intensive purposes, let's assume that that's the entire universe. Now, there are four factors to determine whether the actual use itself is fair use. Now these are factors, they're not elements, you can't just check them off and you have to balance every single one of them. Just because you win one factor, doesn't mean that the use is going to be fair use, you have to balance all four together. And the first factor is by far the most important. This is going to be a gross oversimplification because there are literally millions of pages written about fair use in American jurisprudence. A quick summary of the first factor is that this looks to the transformativeness of the use, assuming your purpose is recognized by the Fair Use statute. Let's assume commentary and criticism because that's what most YouTube use of media falls under. Sometimes it's parody, but usually it's commentary and criticism. The first factor looks at whether you have transformed the purpose of the original clip itself. So for example, a movie review. A movie review often uses clips from the movie that it is reviewing, but it would be very, very difficult to be able to have a coherent criticism or to be able to comment on a movie without being able to use small portions of the movie itself. But how does a movie review transform the underlying movie? The purpose of a movie generally speaking is for the entertainment value. You watch a movie because you're there to be entertained. But a movie review itself is not for the purpose of entertainment, you're not usurping the original purpose of the movie, you are making a movie review specifically to create commentary and criticism about that movie. That is what we're talking about when we're talking about transformative nature of fair use. And that's why the Copyright Act specifically carves out, commentary and criticism as a fair use. So that is the fair use purpose, plus the character of the use, which is transformative. The first factor is by far the most important and you can overcome a lot of sins and the other three factors if you have a highly transformative use case with a clearly fair use commentary and criticism purpose in your use. So that takes me to the second factor, the nature of the copyrighted work. This generally looks to whether the underlying work itself is factual or fictional in nature. Copyright doesn't want to give people a monopoly over facts. So as a result, factual works, the things that actually happened in real life, tend to get less protection than things that are fictional and highly creative. This tends to be actually the least important of the four factors. Factor number three looks to the amount and substantiality of the portion used in relation to the copyrighted work as a whole. This is often summarized by saying that people are only allowed to use the minimum amount necessary, the bare minimum, to be able to get their commentary or criticism across. So just because you're giving commentary or criticism doesn't mean you're allowed to use the entire portion of the underlying work. Sometimes you are, sometimes the clips are very short, sometimes you're only dealing with the picture which you kind of have to use the whole thing. But the bottom line is that you generally can't use the entire work itself or you can't use the heart of the work itself in order to form your commentary or criticism. And finally, that takes me to factor number four, the effect of the use upon the potential market or value of the copyrighted work. This is actually pretty similar to the third factor. The idea is that we don't want people using things in a fair use way that usurps the entire market for the original work. If people are gonna watch your video and not watch the original video or not pay a license fee to the original, then that's a factor that cuts against your claim of fair use. And it also kind of overlaps with the first factor as well. Because the less transformative your use, the more likely you are to use the original purpose of the underlying work and the more likely you are to usurp the potential market for the underlying work and degrade the value of that copyrighted work. Now, if this all sounds incredibly squishy and ambiguous, you are entirely right. That's sort of a feature not a bug though. The purpose of fair use is that this ambiguity and the fact that it's squishy, leads to flexibility, so we can carve fair use into whatever we need it to be and we can apply it to new situations. It's quite flexible. The problem is often you have to go to court to be able to adjudicate these things. And it also means that there are absolutely no absolutes. You can't say that all reaction videos are fair use, some are and some aren't, it depends on the facts of the particular case. So now that you have a reasonably good understanding of what fair use means and its limitations and its ambiguity, let's look at the videos that MxR actually used, and which Jukin claims that MxR now owes them thousands of dollars for having used. What MxR tends to do, is they will take the general clip and then they will inset their own video in a small portion of the rest of the frame. They'll play the entire clip it seems and then they will react to it. So apparently Jukin sent MxR a demand letter that referenced for Jukin owned videos that were used in three MxR reaction videos. On that basis, Jukin claim that MxR owes them $6,000. So let's look at these different videos. So the first video that is at issue is them reacting to a video of a cat sticking its tongue out. It's only a couple seconds long. I'm gonna zoom in on MxR because I don't want to infringe the copyright of the cat video owner. - It made me forget about the mayonnaise and the maggots and the. - So you can see it's an incredibly short clip and there's very minimal commentary and criticism if any. Generally speaking in copyright law, you have to comment and criticize the actual clip itself. You can't use the clip to comment on something else. That's kind of the difference between parody and satire. Parody comments on the underlying work, satire comments on something else. Parody is fair use often but satire is almost never fair use. The next video is of MxR reacting to a volcano exploding. - Well that's. Whoa, you see the shockwave? - [Man] Watch out for the shockwave it's coming. - Did you see it? Dude, that was awesome. Wasn't that awesome Jeannie? That was so awesome. Do you want some water? - So you can see here again, they're only playing a small portion of this volcano video, but arguably that's the heart of the volcano video. You're not gonna watch the 20 minutes of the volcano erupting. The thing you want to see is the volcano erupting. And the commentary, if any, is basically that's cool, which is about as minimal as it gets. Now in this third MxR video, it appears that they've edited it to remove the Jukin videos. I actually couldn't find the videos that Jukin references in the demand letter. I wonder if they have edited those out or maybe I just wasn't paying attention. Jukin references a girl doing a back flip and guys lighting a trail of leaves on fire. I couldn't find that in this underlying video. But I do want to reference what MxR says at the very beginning of this video. - So it's time once again to get Jeannie to laugh. I've come over yet another brilliant compilation of funny things all in the worthy endeavor of making my beautiful darling girlfriend laugh because she deserves happiness. - Sparkles. - They point out that Henry is showing Jeannie these different videos to see if he can get Jeannie to laugh. In my estimation, that's not really commentary or criticism. That's not a transformative purpose. And in fact, by showing those clips in full to the audience, arguably, they're using the clips for the exact same purpose as they were created in the first place, to entertain people, to try and get people to laugh. And it's entirely possible that you might not watch the Jukin videos, because you saw basically the whole thing in MxR's video. So some of those Fair Use factors might cut severely against MxRs claim of fair use. It's hard to say because we don't have those clips in this particular video. And there might be more or less commentary than in the prior two videos that we looked at. Now the last thing I wanna point out is that in the beginning of this video, Henry says that he's not going to display the audio of a particular clip, not a Jukin clip, I don't think but another one because he's worried about getting a copyright claim related to the music. And that is bad when you're talking about potential willful behavior, which is an issue when it comes to damages that we'll talk about in a second. So there are a lot of bad facts in this particular video. In fact, some of these clips might be dangerously close to a hypothetical that I use when I give speeches about copyright and explain things to creators. An example of something that you might think is fair use that is clearly not fair use. The example that I come up with and this is not an actual case, this is just me hypothesizing is that. We recognize that movie reviews are often fair use, often quintessential fair use. But imagine if you had a movie review that had the entire movie itself, the entire two hour long movie and then at the end of the movie, the movie reviewer said, that was pretty good, or I didn't really like that movie. You've got commentary and criticism, you've got some sort of criticism about the movie, it was good or it was bad. But because you use the entire movie itself, that's clearly not the minimum necessary and the commentary itself is also just about as minimal as it gets. So the question of whether MxR, Henry and Jeannie, are actually doing something that is fair use commentary and criticism or copyright infringement may turn on how courts have looked at reaction videos in the past. So let's look at some of those cases. And this is hilarious, because one of those cases involves Jukin Media itself. Before we get to that, let's talk about my favorite fair use case of all time and that is the h3h3Productions case. In that particular case, Hila and Ethan Kline, the comedy duo behind h3h3Productions, did a reaction video to a video of a man named Matt Haas. It was something along the lines of park or girl versus workout guy, which is a pretty cringe worthy thing where a guy kind of stocks a woman who's working out on the street. And in that video, they use almost all of the entire clip itself, but they are also peppering the 10 minute long video with lots and lots of commentary. The Southern District of New York, which is in the news for many different reasons, sided with Hila and Ethan and said that this is a quintessential commentary and criticism and quintessential fair use, and so they threw the case out. Now, it was a bit of a Pyrrhic victory because that required hundreds of thousands of dollars from Ethan and Hila Kline to be able to get to that stage of adjudication, and that was taken out in a very early stage, on the motions, as we say in the legal field, it didn't even go to trial. So if you go to trial, you can expect to pay three to four times as much. I mean, honestly 800,000 to maybe a million dollars to be able to adjudicate that. So that takes us to the Equals Three versus Jukin Media case, a case that actually involves Jukin Media itself. This is a case that is pretty similar. You have a YouTube clip show that is owned by Equals Three, and they are reacting to a particular clip that is owned by Jukin. This case involved close to 20 different clips, but here's one that is sort of emblematic of the rest of them. Jukin owned a video of a bear getting his head stuck in a bucket, and some construction workers used to crane to get the bucket off of the bears head. The clip show used almost all of the clip itself and then proceeded to talk about it for roughly about a minute. - Every time a bear gets his. Winnie the Pooh, it just, it gets me. - And regarding this particular clip, the court cited with Equals Three, and found that this was in fact fair use. If you were to ask me, what is the case that shows the absolute bare minimum of commentary necessary to make a fair use claim? I might point you to Equals Three versus Jukin Media, which is why I have cited to that case in almost all of my videos that rely on fair use clips. But this case is a bit of a mixed bag. The court decided as a matter of law that most of these clips were fair use, but also decided that some could not be adjudicated, so those would have to go to a jury to decide. And at that point, the parties settled out of court. So it's a bit of a mixed bag and Jukin might have been right on some of those clips. Now, if you want an in depth analysis of the Equals Three versus Jukin Media case, check out my friend Leonard French's channel, he goes into a huge amount of detail about this particular case exactly. The bottom line is that this would be an incredibly close call. MxR skating dangerously close to the line of it being not fair use. But there's authority on both sides. And in fact, one of the cases that I would use against Jukin Nedia if I was representing MxR is a case involving Jukin Media itself. But arguments can be made on both sides. If I was representing MxR, which I'm not, I'm not your attorney and this is not legal advice. I would advise them not to go to court because I'd be worried that number one, they would lose. And even if they won, they would probably have to go all the way through trial and take it to a jury, which would incur potentially a million dollars in attorneys fees. And by the same token, stop admitting to. Stop going online and admitting not only to liability, but potentially evidence that could give rise to liability. Stop posting videos and stop going on Twitter and lawyer up and talk about what your rights are before you start digging yourself into a bigger hole than you already have. On the other hand, if I was Jukin Media's attorney, which I'm not, this is not legal advice, I would probably tell them the same thing, that this is not something you'd want to go to court over, they've lost on this before. And that you're dealing with potentially not only losing this battle, not only in court, but in the court of public opinion, but potentially attorneys fees are on the line. One of the things about copyright law is that sometimes the loser has to pay the winners attorneys fees, it gets really dicey. I don't know that this is one of those cases, but it could be on the line. But they're bad facts and there's bad law for both sides. This is not something that either side wants to take to court. And the stakes are incredibly large. I talked about earlier, that MxR might be on the hook not just for the $6,000 that Jukin requests, but actually $600,000. The reason is that when you're talking about copyright law, not only do you have to deal with what are called the actual damages, the out of pocket loss that someone has suffered, but you also have statutory damages. And in some circumstances, where you have a willful act by the copyright infringer, you can get $150,000 per infringement. So those four different videos that may or may not have constituted copyright infringement could mean that MxR was on the hook for $600,000 in statutory damages, that would be up to the court. On top of that, attorneys fees are on the table as well, which might even be more than $600,000 if this was taken to court, not to mention since we're dealing with DMCA takedowns and YouTube strikes, that their channel might be deleted, which I assume is their major source of income for the household. - It's just constantly in the fear of our channel being deleted. - So given the thousands, potentially millions of dollars at stake, is this extortion by Jukin Media against Henry and Jeannie at MxR? Well, almost certainly not, at least not the legal definition of extortion. This might constitute the sort of colloquial understanding of extortion, of bad guy pushing a small person around, but it's almost certainly not legal extortion. We'll talk about whether Jukin is a copyright troll in a second, but in general to be able to form a claim for extortion under at least the federal statute in 18 USC 1951, you have to have a wrongful claim. It has to be disconnected from a claim of right. Jukin claims to have a good faith belief that this is copyright infringement. And on the facts as I see them, they could very well have a meritorious copyright claim. It's hard to say, it could go either way. But because of that, essentially, what they're doing is they're just making a demand, which potentially is legal against someone who was a potential copyright infringer. Jukin Media actually left a comment on MxR's YouTube channel, saying, "hi, we'd like the chance to respond to this. "For starters, it's important to understand "that we provide a service for video creators. "We allow them to list their content on our website "so that TV shows publishers, YouTubers, influencers "or advertisers can buy a license to use their content. "We have no ill will towards you or your channel. "In effect, you're taking other people's videos "without asking them then posting them to your channel "and making money off of them. "We never want to issue copyright strikes, "we have a duty to do so to protect "the copyright of the creators who have signed with us. "Again, there's no reason we can't work together "so that you can have access to amazing videos "and that creators of those videos share in the economics." Of course, Jukin says they don't want to issue DMCA takedowns. And the reason is because there are actual legal repercussions for levying those DMCA takedown notices. So, of course, they don't want to do that and they don't want to take people to court because it's incredibly expensive, and they might lose. But that's why some people call Jukin Media a copyright troll. They get the copyrights to various viral videos and then make demands for serious money from people that have used those clips in other media. I reached out to both MxR and Jukin about this particular dispute. Jukin got back to me and provided this statement, they say that they did consider fair use, but they feel that MxR's videos don't rise to the level of fair use and they point out that they have paid out over $20 million to people whose videos they have licensed. But we don't know what percentage of Jukin revenue comes from making these demands, versus proactively licensing this material. And in some sense, having middlemen like this can be a very good thing because it's often very, very hard to know who owns the rights to these various things. Someone owns the rights to these viral clips, but often big businesses will not use them because they might not be able to track down who owns them, and having a middleman, like Jukin can help solve that problem and create revenue from licensing that otherwise simply wouldn't exist. Now, if you want more detail about whether this constitutes extortion and the requirements for extortion, I recommend checking out fellow YouTube lawyer, Richard Hoeg's channel, where he goes into a lot of depth about this. Now, I disagree with him about the dollar amounts themselves being potential evidence of a claim of extortion. Actually $1,500 per offense is a pretty small amount if I'm honest. I know it can be a huge amount to small YouTubers out there but in the world of copyright law, it's a very, very small amount and it is dwarfed by the potential devastating effects of statutory damages or an award of attorneys fees in an actual lawsuit over this case. One of the more famous extortion cases is the case of Autumn Jackson and Bill Cosby. Autumn Jackson claimed that she was the daughter of Bill Cosby before he was outed as a sexual predator and extorted him, said that she would ruin his squeaky clean reputation in the news media by sowing these potentially untrue allegations that he had fathered her out of wedlock. And one of the cases that Richard Hoeg mentions in his video about this case is the Michael Avenatti case, is ongoing. It hasn't led to a resolution. But one of the things that Michael Avenatti is accused of having done is to extort a settlement out of Nike, not for his clients, but for a multi million dollar consulting gig for himself. Lawyers are not allowed to negotiate on their own behalf at the expense of their clients. And so that could conceivably give rise to extortion. Michael Avenatti just lost a motion to dismiss that legal claim. So it's going to go to trial. We'll see if he's convicted on that. But when a lawyer tries to get something from a party that they're not legally allowed to ask for, like a consulting gig worth millions of dollars for their own behalf, that could potentially give rise to extortion. Whereas here, mainly what's happening is that Jukin is asking for payment for copyright infringement. And as we've talked about before, whether copyright infringement occurred or not, or whether it's fair use or not, is certainly an open question. By the way, some have said that YouTube should just shut this down. Jukin is abusing the copyright system, regardless of the underlying claims, and that YouTube should just remove their ability to make these claims. Well, the problem is, this isn't really YouTube's system. This is not content ID. What Jukin is talking about here is issuing a DMCA takedown. This is written into the Copyright Act section 512. If there is infringing material on a website, including YouTube, you are allowed to issue a DMCA notice and have it taken down. YouTube has implemented a version of that which incurs a strike when you get a DMCA claim. But there are also ways to fight DMCA claims, which I've covered in my copyright course. So effectively YouTube has to follow the law. When they get a DMCA claim, they have to take the video down, they can't ignore it and they can't stop people from issuing DMCA claims. It's written into the copyright law that they just basically have to follow. And if Jukin does actually have a claim, then they have every right to issue a DMCA takedown. Now, the Ninth Circuit law under lens says that they have to have a good faith belief that they have a claim of copyright infringement and they have taken into consideration Fair Use before they have issued that DMCA takedown. But look, if they have a claim, they have a right to issue a DMCA takedown and a copyright strike. This is serious business. I get copyright claims all the time on my channel, but I'm very confident in my fair use because, number one, I have a law degree. I have over a decade of experience as a trial lawyer and copyright lawyer. And I know what I'm talking about. The big businesses have lawyers who know this stuff inside and out because the operative word here is that it is a business. And we've talked about the copyright implications. But let's talk about these sort of, business law related things here. And even though I am not MxR lawyer, and this is #notlegaladvice, what I can say to MxR is you need a lawyer. This is a business and you can't go around, just floundering around, thinking that you're going to be safe. I asked my friend Roberto Blake, who knows the business of YouTube better than everyone what he thought about this situation and here's what he said. - I think when you are a full time content creator, when you have a very significant channel, like in this situation, that you have to really think of things like a business and you have to deal with Jukin Media like a business. They aren't really gonna care too much about the court of public opinion. This isn't like a YouTube drama situation, where calling them out, really is that meaningful. YouTubers tend to get very invested emotionally in these situations, when the real answer is to step back, treat it like a business and call your lawyer and let them deal with it because this is a business to business situation and you really want to play your best cards. And when you take the step of just trying to out them in social media or do something like that, you're playing more the game like a YouTuber than like an entrepreneur and a business person that's trying to protect what they've built. - And that's exactly right. There are huge consequences here. And you have to lawyer up either way. MxR says that they don't have a lawyer. Well, they need to get one. And Jeannie says that she spent half an hour going through Jukin videos. Well, number one, that is not enough time. And number two, you can't unring the bell. Some have argued that look, Jukin admits that the licence fee is only $50, why can't MxR just pay $200, $50 for each video, and then everyone can go on their merry way? Well, the problem is that you're dealing with copyright here. Once you have committed copyright infringement, and I'm not saying that MxR has committed copyright infringement or that they can't use the Fair Use defense. They may not have committed infringement, and they may have that defense. If you infringe the copyright, you can't then go back through the database and buy the license, that's simply not enough. There's statutory fees, which are potentially huge, and it costs money to get lawyers involved. So once the horse is out of the barn, you can't put it back in again. If you steal a car, you can't avoid jail time by giving it back to the owner. And it seems the MxR has already dug themselves further into the hole by not having a lawyer. They said that they already paid $2,000 to Jukin, related to two different videos, and then Jukin came back. Well, when you feed the trolls they come back for more. - Clearly, I realized our mistake was paying the first time because now they're like, we have we have someone we could just easily just get easy money out of. - A competent lawyer probably would have made Jukin sign a release of all claims, so that MxR wouldn't admit liability and it would make sure that Jukin couldn't come back for more after they paid the $2,000. But because they didn't sign a release, Jukin can come back over on adjudicated claims, which is exactly what Jukin did. Additionally, a lawyer would have negotiated it down. Jukin has basically admitted that a reasonable license for these clips is $49, which would mean that an MxR should pay $150, not $6,000. But the problem is that because they didn't have any foresight, they didn't have a lawyer, they didn't know what they were doing when it came to copyright, they could be liable for thousands more, not just the $6,000 that Jukin claims, but potentially hundreds of thousands of dollars in statutory fees. Also a word of caution to MxR, MxR has already linked to a video that takes MxR's side by a channel called TheQuartering. I'd be very careful about listening to that advice. - I strongly suggest MxR stand up and tell them to get bent and tell him to sue them. And when they issue a copyright strike on the channel, I would dispute it and I would say take me to court. I don't think they're willing to do that as a company, but it's not my money. - I'm sorry if this sounds harsh, but Jukin claim isn't necessarily facially invalid. This is a case that could go either way. What MxR has done might be fair use, but it also might not be fair use. It would be up to a judge or jury, and reasonable minds can differ. That's what happens when you go to court. You kind of roll the dice. Certainly lawyers who I've talked to about this very case have differing ideas about it. And I would love love to tell you that MxR is clearly in the right and Jukin is clearly in the wrong. I hate the way that they've gone about, trying to get money from MxR, but I don't know that that's the case. I love creators and I want them to create more art, but we all have to operate within the confines of the way the law actually is, not the way that we want it to be. And it's possible, maybe even probable that MxR is wrong. And MxR isn't quite as small as they claim, they can't stick their head in the sand. Trolls like this go out and they look for deep pockets. The thing is, Jukin has taken this to court before and effectively they've won. We don't know the actual outcome because there was a settlement but odds are Jukin got the better of that particular case. And even winning can be losing in a situation like this. Vindicating your rights could easily take half a million dollars in attorneys fees, just ask Ethan Kline from h3h3, it took hundreds of thousands of dollars, They went through $200,000 in one month to ultimately be successful in their claim. So don't assume that you can start a GoFundMe over that. Jukin doesn't care about what you think about it. A judge doesn't care about your Twitter clout or bad Yelp reviews. So just be very careful about whose advice you listen to. And again, the best thing you can do is talk to an attorney. And I've represented clients on both sides of the copyright coin. I've represented clients who have had to defend against meritless claims of infringement, and I've also represented clients who have had their works stolen by others and had to defend their rights. It's always a big deal and it's always messy. And as Roberto Blake said, they need to think about their YouTube channel as a business. MxR plays gets 900,000 views on average per day, sometimes well over a million views a day. At a conservative CPM of $6 with the YouTube split, if monetized their channel would get roughly $2,500 to $3,000 per day, that equates to a million dollars per year. That's not a small business, that is a medium sized business, and they need a lawyer. Now I understand that there's a controversy about whether their YouTube channel is monetized or not. But I also understand that they have 10s of thousands of patrons on Patreon. And at a minimum, if they're paying one to $2 per month, that means that they're earning potentially a quarter of a million dollars per year just on Patreon alone. You can't get away with thinking that this is just mere YouTube drama. This is real life. The stakes are incredibly high. There are hundreds of thousands of dollars at stake here. You might end up in federal court and this is not just a word of warning to MxR, but this is a warning to anyone with a YouTube channel. MxR says that they're worried they might have to stop reacting to videos and that they might just react to pictures instead. Number one, if you are doing things in a fair use way, then there's no need to stop. But I think they need to ask themselves whether they are very, very certain that they have met the Fair Use requirement. - And at this point, it's like, I feel like we can't even watch any videos anymore. We can't react to any videos period. - Like we can only look at images and pictures. - And I will say that it is just a myth that they could forego the videos and start reacting to pictures instead, because pictures are copyrighted as well and they might run into exactly the same problems that they run into with video, which is one of the reasons I gave a talk called the 11 myths of copyright on the internet. If you're a content creator, and you would like to see this free video, you can check out the link in the description. It's part of my course that I created for creators out there who don't have lawyers necessarily but they need to be protected when they're making videos on the internet. That's why I created copyrightcourse.com. It is specifically created for creators to tell them what their rights are and to give them the tools that they need when they find themselves looking down the barrel of a copyright strike, potentially getting their channel deleted. It gives them the tools that they need, including the actual language that I have used as an attorney to fight off dozens of different copyright claims by underlying rights holders. I have never lost a claim because as I said before, I know what I'm doing and you can use the exact same templates that I use when I am fighting copyright trolls on the internet. So check out the links in the description, you can check out the free video, 11 myths of copyright, or you can go straight to copyrightcourse.com to get the copyright course which I created so that other creators will not be in the same situation that MxR Plays find themselves in. So, do you agree with my analysis? Do you think that MxR is being extorted or that maybe they committed light copyright infringement? How do you think that this would turn out in court based on the precedents that we talked about here? Leave your objections in the comments and check out this playlist over here that contains all of my other Real Law reviews, where I talk about legal issues in the news, including impeachment and tons of other copyright related things. And check it out and I will see you in court.
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Channel: LegalEagle
Views: 1,318,635
Rating: 4.8728962 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review, mxr plays extortion, mxr plays, jukin media, jukin media extortion, mxr, upper echelon gamers, jukin media clips, jukin media scam, extortion, viral clips, reaction, reaction video
Id: 5A_i-sB9H0Q
Channel Id: undefined
Length: 38min 19sec (2299 seconds)
Published: Tue Jan 14 2020
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