A Fair Use Victory for All Creators

How H3H3’s Legal Win Helps Protect Everyone

It’s been a long, arduous road, but yesterday Ethan and Hila of H3H3 productions hit YouTube for their victory lap, announcing that they’d emerged victorious in their year-and-a-half long legal battle in which they’d been accused of violating another creator’s copyright.

To summarize, the pair had been sued over a video wherein they criticized and “reacted to” the work of another creator, who responded with legal threats and demands for an apology before finally following through with the filing of a lawsuit. At the time, the apparent frivolity and predatory nature of the suit galvanized the community around H3H3, with many creators speaking out and asking viewers to contribute to the creation of what became the Free Use Protection Account, a fund for the legal defense of H3H3 and other creators who’ve been attacked over content which should be protected under the auspices of Fair Use. It actually turned what was a pretty depressing moment in the space into a time of optimism, strengthening the shared sense of community amongst content creators and viewers. It felt like the community had taken a big leap forward.

Still, none of that has saved Ethan and Hila from dealing with the constant strain and stress of the actual lawsuit, which has continued through depositions and discovery and filing after filing. That’s the first and primary reason why the video above is so satisfying: the duo did nothing wrong, and they deserve to be able to put this ordeal behind them. But, in the context of content creation in general, there’s a lot about the resolution of this court case and the precedent it sets that should be celebrated by all creators.

Lawsuits, or just the threat of them, are often used as a cudgel against creators. So much of what’s being made out there, independently, depends in some way on the work of another. Streamers rely on games, the protected property of developers and publishers, to create their own unique content, while commentators and critics, really the life-blood of platforms like YouTube, rely on art and content created elsewhere, the work of others to which their own work is a response. This has left them vulnerable, not because what they do isn’t protected, but because legally defending that right is expensive. When you have deep pockets, you don’t need to rely on the merits of your argument to win these cases in court, you just have to outlast the person you’re going after, and often, that’s exactly what happens. Big companies or wealthy plaintifs rely on the expense of defending yourself being too much, forcing you to bend to their demands.

This is exactly what happened to H3H3. The plaintiff in their case did everything they could to prolong the lawsuit, filing motions and petitions, demanding repeated depositions, all to drain their resources until they were forced to settle. It’s a common strategy, and it works.

But, not this time.

The plaintiff in this case wasn’t some enormous mega-conglomerate, but they were using the same strategies, this time to try and squash criticism they didn’t like, and without the financial support of the community, it would have worked. Instead, though, H3H3 was able to fight back, to hang in there and stick around until the case was over, and now their example gets to be cited in other similar cases, providing firepower for any creator who gets similarly attacked for criticizing someone else.

Now, don’t misunderstand: this doesn’t change the game. Content creators are as vulnerable today as they were yesterday, and the above strategy of spending a defendent into submission isn’t going to go away. But, it seems the tide is beginning to turn, and this victory feels like an important moment in that story. Online content creators are worthy of the same respect and legal protections as any other artist, and every time their rights are further codified in the world of arcane magic that is the law, it’s a major win.

It’s hard, and expensive, to defend yourself from these sorts of attacks. But, for those that are able to make it to court, this is proof that it is still possible for the law to be on your side, and the next creator’s legal defense will be all that much stronger with H3H3’s in the system to back it up. We must continue to vigorously and zealously defend the right to Fair Use, to demonstrate the legitimacy of the artforms on display, being innovated and perfected by independent creators all over the world. This is just one early step on that journey.

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