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Streamers are being so lazy

It might be illegal

Thats why professional lifes dreamer excusity is facing accusations of stealing content for his own reaction videos

While making comcomplete mocery of other peoples intellectual property rights

Though hold on this parts great men

I love this guy

Welcome back lelegal eglits today its time to think like a lawyer

Because were going to be covering one of the most misunderstood aspects of copyright law fair use so hold on because it depends

But for those not in the know excusey is one of the most popular and highest paid internet personaldies over the past decade

The twenty seven year old french canadian has cultivated a dedicated following for his unique style of unfiltered commentary for video game live streams and youtube videos

Now excusee his most recent controversy kicked off

When he uploaded the video two as youtube channel showing himself reacting to another creators video on the jfk assassination about to return to gram level given spotted onwele approaching while reaction videos typically involve lots of pausing and constructive commentary on selected clips

Excusees video is almost exclusively just him watching the entirety of another persons s nine minute te dedeo

This trigred an influx of backlash from other youtube es who accused fincucy of free writing off of another credits hard work

All while reaping financial rewards vehicicks from other revenue

This excuseis saying next to hard again its just like wow this video popopular

So im going to sit this corcorner of audience will do basically whatever i say and ill say it next and nothing and make free money and to make matters worse

Sometimes he even keeps the video playing

While he leaves to use the bathroom or make lunch too allowed various work do not popothis to youtube a for the lack of react

For the lack of react boom and of course

Excuis is the only streamer who reacts to other peoples videos in real time with almost no commentary

Its all over the place

停停停停停

Now xqc claims hes done nothing wrong and accused his critics of being

Envious of his success

Now as a youtube who has produced my own share of reaction videos

And had their videos reacted to by others

This is an issue

That is near india to my heart and hmore impdecantly of wallet and the transport of nature of fair use is one of most misunderstood areas of the law on the internet

So today lets take a deep dive into one of most hinted debates on online conent creation and fair use thats happening right now

Now philicx linthe yell better known as xqc has spent nearly a decade building a devoted online

And following as a former top ring competitive overwatch player turn streamer and content creator

And on the livestreaming platform twitch and now kick axqc regularly chat with fans host reality shows in broadcast themselves playing video games

And on his youtube channel actually tually makes gengenervidedeos on variety of topics including videos of themselves

Repics to other creatorors content

And often reuploading his livestreams

Now xqc is no stranger to controversy

And of anything he rebels in it hes been historically suspcted from twitch for various reasons

Ranging from a copyright strike for lifestreaming the tokyo olympics to an incident

Where he uploated a brief clip of tuveral is mating

Which he claims was by accident

And excusee has also blloored out homophobic sexus to otherwise bizarre comments during lifestreams

But ironically the famous twenty outspoken

Xuc now finds himself under fire for the things

He doesnt say during his reaction videos

But most recently xqc kicked the horeneeness on july

Twenty four

Twenty

Twenty three

When he posted a video onto his youtube channel titled the kennedy assassination

Excusey reacts to lemino

But q see video is not so much reaction video

As it is mostly just him watching an entire ninety minute jef k documentary in silence

A number of youtubers accused exq c of stealing the content of a fellow creator

While providing almost zero commentary jowould make the video o tone first it was fililms taking excusee of task

Then some ordinary gamers joined the the raied describing the deo o as garbage

And this is in the first time

That excusees non reactive reaction videos have actually stired controversy new new youtube who creates educational videos

New who you can also find on negula criticized excuc for leaving the room five seconds into reacting to news video

And only coming back ten minutes later

Which neo described as xqc quote making a mockery out of the fact that he is not reacting

He also provided a graph showing that there was no viewership boost for neoduring uring after after excuses broadcast on the streaming like kick

Which excusees recently made a one hundred million dodollars deal to join one of excucies for streams went south

After a member of kickdeff had to jump into the chat to stop him from streaming the entirety of the dark night

He then found himself temporarhihidden kicks rectory aa shadow band for a second codorright violation for streaming breaking bad now weddressing the back lash to the cannedy video x

You see it stted in in lifets stream that he paused like crazy

And added a lot of commentary to very generous statements role

I paused the crazy ed lot of commentary chat uis wiite in commentator is that streams are content streams intertiarity arch content

He then claimed he only rushed through because his chat was was getting mad and after going on one of his trademark renants

He added quote

Yes a lot of it is just watching it because thats what chat watts

But im come in it too much

Check its bored now well talk about legal defences in the future

But this is just classic

The chat got bored so its okay to commit copy right in frinchment

But im im im sure

Hes fine here but im twitter excusee hit back at some ordinary games ers writing quote im watching a viid

I like to my people

Thats it whatever that means now exq c reacted to news response

Uh with this incomprehensible video jah this reediitor his social medidena

What it diwhy it didnt so

So whats the problem

So what the problem

What the problem

That its when you upload it to the same platform

Its a problem

Yeah

So what i think hes trying to say and dont quote me on this

Is that he told his editor or his social media guy

Is that repote lish his livestream to youtube

Thinking that that somehow absolved him of copyright infringement

Thats not the case now what this givering mouthder fails to understand

Is that its copyright infringement

Whether it takes place during a livestream or during a video on demand or a reupload

It doesnt matter or whether its live or not its still copyright infringement

It just might be harder to actually find if theres no actual recorded video of it

If it its still lifestream

It just went off into the either and actually when xqc was called out

During the livestream of reacting to neos video for the lack of commentary

Axqc just gets angry and

And make some stuff up

I think is uh some nonsense reaction about the metal of the pillars

Stustuff medal pipe football

Go at the back back the hi hold up

I think this is

This is a very rare copper alload by

But it highlights the lack of actual commentary

You cant just describe what youre seeing and call a commentary thats not going to qualify

And if hihighlights llack anything thing value ue being

Being added in the lack uutrorgary tiveness of these reactions

But exacsee described some orordinary gamers take as quote unfounded criticism

Full personal attacks

And ask some ordinary gammers

Why this triggers him so much now speaking as a lawyer and youtube the reason

This triggers uh some people especially content creators is it exq c seems to be basically stealing other peoples hard work undof the guys are creating a reaction video

Which well talk about whether its a reaction or not

But besides the legality of it

There are a wide variety attitudes tothe reaction content in the streaming communititself client ent youtube and cohosed of the h three podcast has emerged as a projeate voice on fair used and one of the versus critics of non reactive content creators and on the august seven episode of the age three podcast client in aucucudedeted ted contcounted counvery use with respect to hosting content x you see accuse client of ing the same thing by featfeaturing ing smaller greaters

Content on his platform you keep saying that youre doing it

Youre

Youre doing it respono when youre dodoing it

You havent proving that i know what you keep saying that

However a key difference is at age three rarely plays the video in its entirety and exu see asserted that his life ver reactions exexpoit to smaller greaters

Which set up a furious response from client

Nice nice try

You literally do it to enrich yourself

Youre more ltimilmilonair and you still from small creators

And you dont give off or about get right or what they want youre not creating anything big for anyone

Youre just taking attention of views for yourself

And you dont give about about the

The

The consequences of that

Its not your decision to make that for other peoples property

No the debate devolved into ffingerpointing and insults with client cutting off the stream

But not before xuc is serted

People would rather watch him do the worm than watch clients podcast

And he then did so yeh okay

Sure

I mean thats content man its the original property

Yes yes do that that ooyou know and in the wake of all this controversy youtube met canenyan created periody of xqc in a video

He called a the tragedy of a reaction streamer in which xqc is portrait

Is a smile like monster horting views though monsay the xqc column than this video seems to be actually more cohem than this real thing

The icicon

The bill and oh an undin the pose

Then things got met a when excusee reacted to the video by barely reacting

And then things got really matter when meat canenin reacted to excuses reaction by barely reacting

So ironically meat canenys reaction is probably the one thats most likely to qualify is fair use because

Because under some circumstances

Parody can be fair used

And if i was his lawyer id argue the parody only works

If he reacts to the whole thing without reacting copyright can be really weird

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So link below now back to feeeving streamers

And this is a perfect opportunity to talk about one of my very the cases that actually involves eain line now originally eain line found faie through his youtube genenh three h three productions uh which was hosted by himself and his wife hilla

Now their content included sketch comedy in reaction videos that sateurize into a culture

And it was one of their biiting reaction videos that landed them in federal court because in february of twenty sixteen

Ethan in febila posted a video

Merselessly mocking the video of another fellow youtube matt hosen sia uh in which his character uh the big bold guy uh attempts to seduce a of interest

Using the power of parcorard strong shoulers he wrote that in

By the way

I dont recommend that you watch es video

It is the most crge worthy thing you have ever seen in your entire life

And for some reason it still exists on youtube

But the clients fourteen in the reaction video included numerous clips of the big big bguguys

Supremely ringe video and nspersed with with their own commentary vijokes and frankly they played almost the entire video

Itself while they were commenting on

I feel so objectified

You can help me how liyou of course

And its just that in y baby and in response

Holdenzzit it wn wn online as matt hoss sued the pair in federal court for corporate infringement in dmca violations and in the original complaint

Hasseacues the clients rereproducing virtually all of the work as about nothing more than a prop in their comedy routine

And after the clients posted a video discussing lawsuit hosse added defamation claim as well

But judge caththerforforest of the southern district tive new york rejected all of hsses claims ruling that the clients video constituted ququtiessential criticism and comclearly clely ly fell in the bounds of fair use in her analysis

Judge force highlighted that the heart of the fair use inquiry is the extent to watch the purpose and character of the use is transformative by adding something new with further purpose or different character

Knowing the commentary and criticism have a strong presumption in favor of fair use

She sights various jokes and comments

The clients made about the video like calling howse the king of chinge tube criticising what they found to be unrealistic dialogue between hoss and the parcore actress and mocking the plaintieparparcorore ability

Judge force also analyzed um to what extend the clients video

You serve the man for horses work by serving as a market substitute

Inciting the supreme courts ruling in campbeversus

Kkelr

Rose akav to life ve crucase

Judge force noted that lethal parody may indeed hurt demand for the original work and the injury may even be intentional

But that does not prove a harm cognizzable under the copyright act and accordingly

Judge force found at the clients video replete with criticism and mocky is cote decidedly not a market subtute te the hhose video holding the the clients video constituted fair use um

Judge force then dismissed the claims of corporate infringement and the d mc a violation as she also tossed the defamation action

Deeming the offending statements

Non actionable opinions and even client rightfully declathis this ling a huge victory ory fafause on youtube

But in a foooot te te juforforrest also cautioned the te te the court is not ruling here that all reaction videos constitute fair use

She then provided helpful viidance for why the clients video was fair use

But other reaction videos might not be quote

Some reaction videos like the cline video

It ner spare short segments of an others work with criticisms in commentary

Well others are more keen to a greviewing session without commentary

Now even though this cases seven years old now its a great run down of the faarious factors especially in the context of an actual youtube case

Which is why i side this case in in every single one to buy video descriptions

And if lemono or neo or others decided to sue excuc for coporate ininincement

I can brtdom as guarantee the dell quote from this decision to argue that excucies videos are a greviewing session without commentary in title led to fafair use defence

Lets run through this analysis for what excuse is doing and figure out

Whether he has a fair use defence

Or whether its copyright infringement now fair use is a legal doctor that allows unlicensed use

Use cocoyyrited material incertain circumstances as an affirmative defence ence ininfringement

Fair used six to balance the property interest of copyriite holders with the public interests of copygraded freedom of expression and the wider distribution of creative works and offair uis decided on the copright case spes es there cercertain numeracactities ties are a laid out in the copyright act as potentially qualifying for fair use

And that includes criticism commentary

News reporting and research

And that is not an exhaustive list and in determining whether a particular use of a cooperor or constitutes fair use courts will consider the following four factor has cautified section one of seven of the copyright act and no factor is determinative

You have to way every single one of them

And the first factor is the purpose and character of the use

Including whether the use is of a commercial nature or for a non profit educational purpose

A seconsecond is the nature of the corporrited work

Uh the amount in substantitially of the portion used in relation to the coporate ted work as a whole and the effect of the use upon the potential market for or value of the copyright ted work

So for the first factor courts examine how the party claiming fair uis using the copyrighted work and well non commercial and educational uses are more likely to be deemed fair making money from the use of others work doesnt automatically preclude a fair use

Finding instead the key inquiry is to the extent the use is considered transformative

And the exam vel ii often use is the asassipark was originally a novel written by michahael ryden

Then eventually it was turned into a movie jassc park uh created by stephen spililberg

Now movivie is a derivtive of the novel

And well well was transansformative to turn the novel into a movee

You better believe that stephen spililberg got permission

And was able to to icense the ip to turn the novel in into a moe e stestephen spilberberhad not gotten permission

That would have been copyright infriningment

And well thats why fair use can be tricky

Because for it to qualifies fair use it has to be transformative

Has to create something new

But it also has to be for the purpose charcharter of one of the fair use categorories the the law cocognizes as available to use fair use

Whether its education or whether is commentary criticism or appparity

The purpose has to be there as well as it being transformed

Being transformative alone is not enough in fact that can make it copyright infringement

Whether something is trtransformative is prepretty complicated subject

I could make an entire video just on whether something is transformative

But heres what this supreme court said in the two life ve crew case ase the central purpose of the purpose and character of views

Inquiry is to see whether the new work merely supercedes the objects of the original creation or instead

Adds something new with a further purpose or different character altering the first with new expression

Meaning or message

And that case is suprecourt court held that the rap group of two live crews commercial paroity of roy orband song or pretty woman was non infringinging fair use

The court also found that the more transformative of the new work

The less less nificant of the other three factors are and as a result

The first proong has historically been the most decisive infair use determinations and generally speaking youre supposed to take the minimum

Amount necessary to create the transformative work

That youre creating now paroity is a little bit different

There in an exception

You sort of need to take at least enough for people to get the joke

You have to be able to conjerup the thoughts of the original for the parody to work

But are really speaking for fair use

Youre supposed to take the absolute minimum necessary now theres a little bit of gravery in terms of what is minimum

And when whats not but still generally speaking youre not going to be able to take the entirety of a work now and simply played in the background

And this is the heart of the criticism

Against excusee namely that his reaction videos are insufficiently transfortive tive

Concontute fair youth now seconsecond factors

The nature of the copyright ted work which analyzthe degree to which the work that was used

Relarelates to sufpyright purpose of encouraging creative expression in short the use of corporative material from a work of fiction waie in favor of finding infridgment while taking from a factual work

Likely a news item is more likely to be deemed fair use

But the frankly fathe tiis dont put much uh impuh for this particular factor unless uh the work has never been published before

But the third proone considers the quantity and quality of the corporated work that was used

In relation to the corporperated work as a whole so in

In other words fair use is less likely to be found

When large portions of of cocoyrited work are used

Or if youre taking the heart of the copyrighted work itself so another words fair used is much less likely to be found

When large portions of of copyrated work are used

And youre much more likely to be able to amount a fair used

Defence

When you only use small portions

But in some context

Even taking a small amount of a copyated material can render a use unfair

If a selection constitutes a substantial part of the work

Or the heart of the work itself so for example in a case called harper and rovers nation enterprises this the ruin court held that a news articles quotation of fewer than four hundred words from president jailled fords two hundred thousand word memwar constituted the heart of the work and the use was ultimately found to be infringging

And the reason there is because the magazine published the part of fords

Memwar that related to pardining rhard ds nixon

Which apparently was the only reason

You would ever read jeralforfords memmoar

So this would be another strike against xuc

Because xuc in these other live streamers are just republishing the entirety of other the youtube videos

And then reacting to it now as we saw in the cliencase h just because you republish virtually all of a video doesnt necessarily mean that you cant mouna fair use defence

But it makes it really really hard

And the more that you cite the more youre going to have to add commentary or some new transform of meaning to your secondary video

And then the forth and final factor focuses on whether and to what extent the unlicense you sapped the demand for the protected worwork by serving as a market substitute in other words in assessing this factor courts considered whether the use is hurting the current market for the original work for example by displacing sales of the original people or prevenupeople from watching the original video

And or whwhether use could cause essential harit um if it were to become widespread

And i think this is yet another strike against xqc

Because when you republish virtually the entire portion of another persons video

And then youre not commenting on it uh with new meeting in commentary

And why would anyone then watch the original video uh theyve already seen the video o your lifestrestream now as someone

Who has made dozens of reaction videos for this channel

And as a lawyer

Who who has best best inteinterest in not getting sued for goporyright infringement ive lot of experience on how these reaction videos are supposed to work or least thats how gamer ant feels about my channel um but to give another example

When i reacted to um the movie

My cousin venny

I didnt post the entire movie

And i didnt just show myself watching it hoi ver fun that might have have been i instead

I took clips and puntuated them with my actual legal commentary

Uh you see the traditional way of making reaction videos is to actually react to the videos or its closely a kdh

I just said that now creators whostreamam for long periods of time a sort that of course there will be dead air

While they eat to go to the bathroom

But the problem with that argument is that by the nature of livestreaming

You cant take the minimal amount necessary as required under the fair use factor

And it said youre playing the whole thing in real time

And youre not making any discretionary choice as to what is actually republished and yeah biology might dictate that you might need to take a bathroom break

But thats not a defence to copyright in infringethat thats a live streamer problem

Not a content creator problem

So yes leaving to take a break

Will almost certainly viola cockry due to the lack of commentary

But arguably so just just watching it in real time

If theres no commentary being made and this highlights

Why it might actually be impossible for any live streamer to have a live stream reaction

Where theres just simply playing the entire video o reacting because theres res no forethon because whats the minimum necessary to make the point of the commentary or the point of the criticism

Theres just playing the entire thing and interrojecting some little bits of commentary or criticism owe be in courts dont look fononently

When you use the enrety of the work

So yes

You would add some original commentary to your reaction

But if it completely this places the market for the original probably not fair use

And its pretty obvivious

But once complea video o during a ve dredreagain the way

That most of these live streamers do it

Youre not going to go and watch the whole video again lets ts be honest this kind of reaction

Content is extremely low effort and easy to do why because youre just pigybacking on the work of the original person and mother excuacy is in the room

Or not theres an argument to be made that his borderline in coherent doubling

Might not even qualify is the commentary cricriticism necessary for fair use way

Honestly i think my dog could offer about the same level of insisive commentary as exq see during most of his live streams

Yeah

You want to feel bad is apprerently

That apparently

This garbage is apparently worth one hundred million dollars to the streaming platform kick

But there are some life streamers who do things

The right way

If you get permission

Or you get a licence from the person

Who owns the rights to the videos

Then by all means its great that you are getting that permission

And then reacting to it

And if he wants an exexample people

People do reaction contcontent right that arent lawyers on youtube

Theres the popular youtube bloodwing

Not only has he created his own dedediffevititiing between a genuine reaction video and stolen content

Hes also held in high regard among other content creators for his ethical streaming practices

Uh in particular

He asks four permission

And when he reacts to fantastic series

Like jet lag also available on nebuillah

He continually suggest the people sign up for nebuilla

So they can watch jet lag

Where it was originally published

So luloodwig is evidence that its not impossible

And another example of someone who does reaction content

The right way is docker mike

He is only looking at little snipppets

And then he is talking about how that snipppet tes tes to his chosen practice obviously medicine

Now you dont have to be a lawyer or a doctor to do reaction content

You do need to make commentary about the um thing

You are reviewing

And you generally speaking can use the entirety of the work

You should have some forrethought about what youre going to use and whats not necessary and ultimately non transformative reuploading of videos

Hurts content creators

Free rights of their hard work and likely infringes on their ip rights

If these videos are reuploated in their entirety

It should be left up to the original content creators to approve or rejected and remember theres a super easy way to get around this

Just ask permission from the original content creator though in defence of lifetreming reaction videos is s on bbsaid quote

Ninety percent of ators dont mind ind like it

When were watching their videos im a content creator

And i love it when when rereact my vivideos

But the thing is that even if ninety percent of those people would agree to it

If you ask them

You still have to ask them or its copyright infringement

And that of course leaves out at leleast ten percent

Its probably more than ten percent of content creators do actually mind

And you are explplicitly going againtheir wishes so ultimately the easeasest way around this

Thats good for everyone is just ask for permission

But streamers seeneed to realize that not only is it legally required to ask for permission in many if not most of these circumstances

As well as it being the morally right thing to do

Its also in their petunarary interest

Someday lawyer is going to explain the concept of statuory damages to them

And theyre not going

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