u/LossPreventionArt

https://www.courtlistener.com/docket/73504688/17/ted -entertainment-inc-v-doe-defendants

In a technically sound but desperate sounding filing, Rom compares the does to criminals and offers a huge concession: he promises the court that if they enforce the subpoena, he is willing to have the does identities restricted to "Attorneys' Eyes Only", meaning Ethan or Hila will NEVER be allowed to see them.

OK I'm back again to complain about the h3 stans grasp of the ruling because they're driving me insane. Also I thought people would appreciate actual counter arguments to this based on the ruling.

####"this ruling means that I can stream a Disney movie, pause occasionally to say I don't like it, and that's fine"

No, it doesn't. For a start denims win has not set a new precedent for anything. All that's happened is the law as it exists has been followed. But let's pretend it's the law itself that's the issue, why cant you do this. Well, fictional works are among the things afforded the strongest protections in copyright law. The Nuke is a non-fiction documentary/commentary video which inherently has a lower level of protection because it deals with public facts and political issues, which are open to both response and commentary. One of the things the judge specifically comments on is the wide range of denims critiques as well: her criticism isn't limited to the content of the nuke. She builds on some of Ethan's points (using his sinophobia to discuss wider issues of American attitudes towards the Chinese, talking about wider zionist attitudes and so on), she engages in simple mockery (making jokes about Ethan being out of control, how poor his comedy is), she makes editing critiques and so on. So it still wouldn't be enough just to say you'd disagree with it. You'd have to expand upon the work significantly in some way, which with a fictional work is nigh on impossible. It would have to be on the level of Room 237 which makes fair use of footage of the shining in a documentary by using it to explain multiple in depth and complex fan theories about hidden messages within it. If you could do that with a reaction to a Disney movie, then you'd be on your way to being able to do this.

However there's more to this: Campbell v. Acuff-Rose, one of the most significant copyright cases of all time, made several significant rulings (parody is fair use, earning money doesn't mean something isn't fair use, etc) but the relevant one here is the ruling that you cannot use someone else's copyrighted work to gain attention or avoid the effort of having to create your own original work. If you broadcast a Disney movie, even with pausing, you would be using the Disney movie as the draw (and are openly stating as such) which rules out fair use immediately.

Finally we have the method in which the nuke was distributed vs Disney movies. Google and federal case law have established that freely accessible, ad-supported public uploads have a vastly different potential market structure than paywalled content. Ethan should have been aware of this but christ knows what Rom is telling him. This means that the barrier of entry for anyone watching the nuke is zero. I can easily go and search it. If anything the barrier of entry for denims stream was higher - I had to catch the live broadcast when it was live, I had to make sure she was actually watching it, etc. So for me to watch Denim's react to the nuke I had to make a conscious choice to do so, even though it was slightly more difficult. Disney movies on the other hand are behind a pay wall, heavily protected by copyright, and the barrier of entry is not only monetary but also relies on me having a credit card, signing up for an account etc. Whereas someone rebroadcasting it, all I have to do is watch their stream. That is much stronger argument for market replacement and stealing revenue from Disney, that you are providing a free, easy way of accessing their content.

Also not mentioned in the judges ruling but mentioned by denims and probably had some effect - Denim's doesn't regularly react to Ethan's content. She isn't rebroadcasting his show every day to her viewers. Denims reacted to the content nuke because it was a unique political event occurring at that moment. Had Ethans video not been political, it would not have interested denims at all. Her interest was in responding to the political points. Whereas a Disney movie is not an event, and if you have no history of streaming and start streaming Disney movies with pauses, your intent is obvious.

####"the judge is biased because LUS says she said watches reaction content!!"

No. The judge is informed. She didn't mention this to illustrate a bias. She mentioned it to show she had an understanding of the online landscape and how reaction content works. Her understanding the reaction ecosystem was bad news for Ethan's case, but it does not make her biased.

####"major media companies are going to be very interested in this appeal and may even help ethan!"

No they aren't. No new precedent is being set. This is a run of the mill fair use case that was so poorly put together and justified that the judge threw it out. That's actually quite rare and speaks to how poorly written the filing was as well as how weak his case was.

####"LUS says the judge said that the nuke doesn't have the same protections as a Disney film, that's grounds for an appeal all copyright has the same protection!! Ethan has this appeal won on that alone!!"

All copyrighted works do have the same protection when it comes to reproduction and so on. However this isn't about that protection, it's about fair use and criticism. What you're missing is that while Ethan's video was protected so was Denim's criticism of it. Political speech is one of the most intensely protected forms of speech. Ironically, in another failing of his filing, Ethan's long, barely relevant diatribe about Israeli history, anti semitism and zionism illustrated for the judge that denims was criticising an intensely fraught political subject that both she and ethan had strong (opposing) opinions on. That gave denims extra protections without ever having to state as much. The pages and pages of emotive descriptions of denims speech and miscellaneous pictures of Hitler also proved that denims work must have been transformative because he had so much to say about her comments and how they were wrong. Even without him admitting to transformation, this would have likely been ruled the same way just based on that.

####"Denim's openly stated she was trying to steal views!!"

She didn't. She said "if you enjoyed not giving views to that awful video, think about dropping a sub" or words to that effect but that's the closest she came. However as I mentioned above, earning money is not disqualifying for fair use. It's simply weighted in regards to everything else. Secondly, even if denims had said "I'm broadcasting this video so I can steal views from Ethan Klein as I get a sick thrill from stealing money directly out of his pocket" there's still a very strong chance, I would go as far to say near identical chance, that it would be ruled fair use and the statement irrelevant.

I actually think this is where Ethan has confused the fungi most of all. There is no concept of a "malicious copyright breach" and for good reason. The entire US copyright system is built from the ground up around not being a censor while still enforcing legal copyright. The second a court starts ruling which copyright claims are valid or invalid based on a criteria of "malice" it becomes a censor. It makes it much easier for people to weaponise the copyright system to quell speech by arguing malice. So the court is never, ever going to make a ruling like that for first amendment reasons. The fact Ethan thought they would is insane but it may explain why he didn't want any of these to go to court.

"the appeal/subpoena/countdown stream is going to vindicate Ethan!"

None of them will. Ethan's case is a ghost. The judge ruled denims format itself transformative. She simply needs to apply that to the countdown stream and it too will be dismissed. The subpoena is likely going to be stayed until denims has cleaned up the entire case as the 9th circuit will see the writing on the wall, or the subpoena appeal will be granted in the mods favour. Ethan's appeal will likely not even be accepted but on the slim chance it is, the 9th circuit is incredibly fair use friendly and will not look kindly at someone who framed an alleged copyright dispute around a lengthy document that is mostly correcting and punishing someone for having the opposite politics to them.

Any others that I may have missed, let me know.

just a quick meme.

this is only covering the first 5 lines.

If I was making a video about this topic and my name was Charlie, I would include this info as proof of Ethans continual dishonesty.

The fungi keep saying that Ethan is doing this because of his children, framing the entire lawsuit through that lens. If you go on LSF or Twitter, you'll find endless comments that end with some variation of: "Honestly, if someone came after my children, I'd go just as hard."

We know that neither Ian nor Anisa have ever "gone after" Ethan's children. It's not even the main focus of their criticism of him. There's a reason people believe it, though: Ethan has always framed his harassment campaign this way.

The most obvious example is his Content Cop reaction. Seconds after "resuming" the video, he goes out of his way to reiterate, again and again, that this is all because of the CPS call (back before his lawyer made him stop blaming Denims). The unspoken groundwork he's laying is that everything Ian calls out, all of Ethan's behaviour in the episode itself, and everything he does to Ian and Anisa afterwards, is justified by that. I edited together a supercut of the first eight minutes above, but he continues well beyond that.

Ethan is fully aware that his campaign crosses the line into genuinely deranged territory, so he's made sure to frame the entire thing around his children. He's using them as a shield for his own small-minded, bitter, vindictive harassment