Triller: H3 Podcast Can’t “Steal” Jake Paul Fight Video & Claim Fair Use

In May, Triller filed a lawsuit against the H3 Podcast, claiming that by showing a portion of the Jake Paul vs. Ben Askren fight event on YouTube, the defendants breached the company’s rights.

Triller initially alleged two types of copyright infringement, violations of the Federal Communications Act (FCA), conversion, and violations of the Computer Fraud and Abuse Act. The company demanded $50m in damages after the “unauthorized broadcast” was allegedly viewed one million times. A first amended complaint named Ethan and Hila Klein as defendants and a second removed the fraud allegations.

Early September the defendants fired back with a motion to dismiss the “fatally defective” complaint, arguing that they only used a very small portion of the four-hour broadcast for the purposes of commentary and criticism, a key component of a fair use defense. Triller’s allegation, that Ethan Klein admitted that the copy of the fight he watched was pirated, does not amount to anything since viewing such content is not an offense, the defendants argued.

Considering these points and others formed along similar lines, Triller’s lawsuit should be dismissed, the defendants said. In an opposition to that motion, filed late Wednesday, Triller argues otherwise, shifting emphasis away from the podcast itself and onto the video clip used by H3, which was placed on YouTube as an ‘unlisted’ video.

‘Unlisted’ Video Was a “Bootlegged” Copy

In its opposition, Triller moves directly to the core of its new focus. The company says that Ethan Klein admitted online that he pirated the Jake Paul fight and uploaded “substantial portions” of that broadcast to YouTube in the form of an unlisted video. Third parties were allegedly able to view that video without paying Triller PPV fees.

“These are textbook violations of the Copyright Act, and Defendants should not be permitted to thumb their noses at the law or this Court,” Triller writes.

Triller’s initial stance was that the H3 Podcast episode that contained the fight clip was viewed a million times but they now state that the episode, which contained commentary and criticism, is not what this lawsuit is about.

“This lawsuit does not concern or seek to stifle Defendants’ commentary relating to the Broadcast. To the contrary, this lawsuit concerns Defendants’ creation and dissemination of the Unlisted Video,” its motion reads.

URL of Unlisted Video Was Displayed In Podcast

According to Triller, the “stolen” clip used in the H3 episode contained a piece of information that undermines the defendants’ case. By displaying the fight clip and its URL (location on YouTube), a breaches of copyright law took place.

“To the extent Defendants wanted to provide commentary concerning the Broadcast, Defendants could —and should— have done so without violating the Copyright Act by hiding, obstructing, or obscuring the URL for the Unlisted Video,” Triller’s opposition to the motion to dismiss reads.

“But, whether out of negligence, willfulness, or maliciousness, or some combination thereof, Defendants chose to not hide, obstruct, or obscure the URL for the Unlisted Video, and thereby unlawfully permitted at least 65 individuals to view the essential portions of the Broadcast without paying Plaintiff the required pay-per-view fee.”

Triller says that because each of these 65 individuals failed to pay Triller and the unlisted video was monetized, the defendants’ profited from their direct infringements. On the other hand, Triller notes that the defendants may not have earned anything at all (as the defendants have previously claimed) but want the opportunity to ascertain the facts during a discovery process.

Process of Viewing Pirated Broadcast “Was Illegal”

In respect of the defendants’ claim that simply viewing the event from a pirated copy wasn’t illegal, Triller suggests the whole process that facilitated that needs to be examined. The company says that the defendants not only viewed the broadcast without paying but also downloaded the broadcast and uploaded it to YouTube, where it was viewed by third parties.

“By unlawfully viewing and downloading the Broadcast, Defendants engaged in direct copyright infringement. By uploading the Broadcast to YouTube where other individuals could —and did— unlawfully view the Broadcast, Defendants engaged in vicarious copyright infringement,” Triller adds.

The company also addresses the defendants’ claim that the unlisted video was a “digital stream” and therefore inherently “transitory”, stating that the file was “fixed” on YouTube’s servers.

Defendants’ “Bad Faith” Rules Out Fair Use Protections

In their motion to dismiss, the Kleins stated that under the doctrine of “intermediate use” the preliminary step of copying a video for use in the creation of a fair use work also qualifies as fair use. However, Triller believes the way that video was obtained weighs in its favor.

“Defendants did not obtain the Broadcast lawfully; indeed, Defendants expressly proclaimed to the world that they stole the Broadcast,” Triller notes.

In respect of H3’s commentary and criticism podcast, Triller says the same effect could’ve been achieved without showing the broadcast at all, or by lawfully purchasing the broadcast like any other consumer.

“But Defendants did not do this. Instead, Defendants admittedly ‘pirated’ or ‘bootlegged’ the Broadcast, uploaded a copy to YouTube so others could —and did— similarly unlawfully pirate or bootleg the Broadcast, and profited therefrom.”

Further weighing in on the “intermediate use” defense, Triller says that case law only allows infringements that are “not ultimately used in any end product” and in this case, the H3 Podcast episode indisputably contains copyrighted material.

“Accordingly, the intermediate use doctrine does not apply to the Unlisted Video as a matter of law,” Triller adds.

Other Fair Use Factors Cannot Be Relied Upon

Again focusing on the ‘Unlisted Video’ rather than the H3 Podcast episode, Triller says that there was no comment or criticism in it. It was a “substantial portion” of the broadcast, in its original form, and was in no way transformative.

That source video was viewed at least 65 times without comment or critique and since those viewers were able to watch the Jake Paul fight in full, the video was a market substitute for the broadcast. This meant there was a substantial effect on and the market and value of the copyrighted work.

Finally, in the event that the court decides to dismiss any of Triller’s causes of action, the company requests permission to amend its complaint once again.

Triller’s opposition to the motion to dismiss the second amended complaint can be found here (pdf)