Defend free speech and individual liberty online. 

Push back against Big Tech and media gatekeepers.

Jukin Media shoots itself in the foot, referencing previous fair use case that went against them, lawyer says

If you’re tired of censorship and surveillance, join Reclaim The Net.

Jukin Media, who deal in licensing viral videos, recently presented YouTuber MxR Plays with a demand to pay $6,000 in fees for allegedly violating copyright by using content the company says it owns.

Jukin also threatened that unless MxR Plays pays up, it would issue a copyright strike against the channel and take it down. MxR Plays, however, believes that the way footage from Jukin clips was used falls under fair use – in other words, is permitted under copyright law.

This has in the meantime grown into a controversy, with accusations that Jukin were effectively extorting the channel for money. Hundreds of thousands of eyes are now on the case, including vast amounts of fans supporting the YouTuber, but also legal professionals looking at how the situation may play out, and if it might set any precedents.

One of them, Leonard French, took to Twitter to ask Jukin about their understanding of fair use. The reply he got revealed that Jukin may not have much of a leg to stand in when it comes to their action against MxR – at least according to him. This came out when Jukin referred to a prior fair use case and lawsuit – apparently citing it as a precedent that backs up the company’s position in the MxR Play controversy. But in reality, that judgment by mostly went against Jukin, he says in a video.

“We consider fair use in these matters, and we disagree strongly that this constitutes fair use. As you mention we’ve fought in court over similar usage in the past,” Jukin said on Twitter, getting heavily ratioed.

Click here to display content from Twitter.
Learn more in Twitter’s privacy policy.

However, French goes through the judgment, of the case that was eventually settled.

The case centered around a video-making company, Equals Three, who sued Jukin for claiming copyright infringement, and asked the judge to declare that none took place.

Click here to display content from YouTube.
Learn more in YouTube’s privacy policy.

Jukin then counter-sued alleging infringement in 19 videos.

The judge acknowledged the complexity of determining whether this was a case of fair use – calling the process “anything but simple” and involving “fuzzy boundaries.”

In the partial summary judgment order – the only one issued, since the case was settled, the judge found that no market harm was evident, as Equals Three videos “did not take excessively from Jukin’s.” The judgment added that all but one of Equals Three’s videos cited by Jukin as infringing, were in fact highly transformative.

“The Court must now weigh the four factors in light of copyright’s purpose. See id. In so doing, the Court notes that transformative works generally further copyright’s goal of promoting the arts and sciences. Campbell, 510 U.S. at 579. Here, Equals Three’s episodes (except Sheep to Balls) are highly transformative and use of Jukin’s videos only what is reasonably necessary to achieve their transformative purpose. The first and third factors thus strongly favor fair use. There is no proof of cognizable harm to any actual or potential market, and thus the fourth factor favors neither party. Moreover, though the second factor weighs against fair use, it is of little weight in light of Equals Three’s episodes transformativeness. Moreover, Jukin’s videos were published before Equals Three used them. Thus, on balance, the factors weigh in favor of fair use for all episodes except Sheep to Balls.

“I think that undoes a lot of what Jukin just said on Twitter,” Leonard French concluded. “They actually gave us a case to look up and that case went against them.”

Read that full ruling here.

It’s worth noting that while jury trials can’t set legal precedent, a jury ended up ruling in favor of Jukin Media.

A representative for Jukin media told Reclaim The Net that “While French went through the court documents, the Variety article references that “after hearing evidence the jury found that Equals Three did not have fair-use rights to any of the 48 videos Jukin had alleged were infringed,” and referenced this Variety article.

The case was eventually settled with an undisclosed agreement.

If you’re tired of censorship and surveillance, join Reclaim The Net.

Read more

Join the pushback against online censorship, cancel culture, and surveillance.

Already a member? Login.