YouTuber Extortion?  MxR Plays v. Jukin – Real Law Review // LegalEagle

YouTuber Extortion? MxR Plays v. Jukin – Real Law Review // LegalEagle


– The plucky YouTubers
behind the channel MxR Plays, claim that they’re being
extorted by Jukin Media, all for uploading some
reaction videos to YouTube. On the other hand, Jukin says that MxR committed copyright infringement by using their videos without permission. Who’s right? Well, I have some good news
and some bad news for MxR. The good news is that
they might have a defense to Jukin’s claims. The bad news is that they
might not have a defense. I have worse news still, they might not just be
liable for the $6,000 that Jukin demands, but
actually $600,000 or more. And the worst news of all, there’s no way to figure
out which one is right until they go to court
and spend potentially a million dollars on attorneys fees. So who’s right in this whole
reaction video debacle? Well, let’s think like a lawyer. Hey, Legal Eagles, it’s
time to think like a lawyer because I’ve received
hundreds of emails and DMs about this particular case
and this particular video. This case has it all. A little guy who’s getting pushed around, a bad guy who might be a troll, the intricacies of
copyright law, huge stakes and thousands of teenage legal experts. So let me give you a
quick summary of the facts as I understand them, because they’re going to be necessary to make any kind of legal judgment here. A few days ago, the
YouTube channel, MxR Plays, posted a video to YouTube claiming that they were being extorted. – Something called the Jukin Media. It feels kind of weird talking about it ’cause it just happened. – Apparently, a few weeks or months ago, they have been posting various reactions on their channel. They would take viral and meme video clips from the internet and the two of them, I assume that they are a
boyfriend and girlfriend couple, would react to them in some ways. Sometimes it would be the
man that was responding and reacting to the clip. Sometimes it was the woman in MxR, not unlike many YouTube channels that are out there
reacting to various clips. Now as it happens, a
company called Jukin Media, claims that the couple used
clips from Jukin database. And Jukin appears to
be sort of a middleman that goes about clearing
rights to various viral clips. If they see that a video is trending, they’ll go out and they’ll
reach out to the person that created the clip and they will get the ownership rights to these various clips so that they can license
those clips to other people. – It used to be that they
would claim your videos and take the revenue
from that video, right? – Better than a strike. – And so we started, you know, removing their clips from our videos. – Of course, because we’re like, okay, that’s your clip,
so we won’t use it. – So basically, they just
strike our channel now, whenever they see a clip. – Some call Jukin Media a middleman, they themselves analogize to Shutterstock, where they buy rights to
various forms of media and then sell it to other third parties. Generally, you can buy a license
from Jukin on their website to use their clips for $49 per clip. Some called Jukin Media a copyright troll, they specifically get viral clips so that they can extort money
from other third parties. I won’t make a judgment call as to whether they are doing
a good thing or a bad thing for the internet. But in this particular case, it appears that MxR admit
they have used various clips that belong to Jukin. I don’t know if you can actually owns the rights to these clips. But for the sake of argument, let’s assume that Jukin does in fact own the copyright to these various clips. In the past, Jukin has reached out to MxR and they have demanded
$2,000 from the couple for the couple’s use
of various Jukin clips in their YouTube channel. – They email us with the bill and they charged us $1,500 per
clip, that was in our videos. And so today we got hit with a
huge bill of $6,000 in total. – Jukin can came back
and demanded $6,000 more for the use of four other clips they didn’t previously make a demand on. It was at that point that
MxR went to the internet and as one does when they
have a YouTube channel, posted a video saying that they were being extorted
by Julian for $6,000. – So we’ve paid about $2,000 in total, and now we have another $6,000 to pay. And if you don’t pay, then basically they’ll
start striking your channel. – MxR claims that their
use of these videos is fair use, of course, and Jukin disputes that characterization. The stakes here are incredibly
high in several respects. Number one, Jukin is asking for $6,000, which for many households, that amount of money could
lead to financial ruin. But additionally, when you
get attorneys involved, $6,000 is a drop in the bucket and we can be talking about hundreds of
thousands of dollars here. But on top of that, still, we’re talking about copyright strikes here and Jukin has threatened to issue copyright strikes against MxR, which means that with
three copyright strikes, potentially MxR’s entire channel
could get deleted forever. – Basically go through
an entire video library, most likely find is
three instances of some, you know, random clip, and then they’ll basically
remove our channel if we don’t pay them. – And we don’t really
have power against it. We’re stuck between a
hard place and a rock, so I feel like they’re just
constantly gonna extort us. – So the stakes are incredibly high, which by the way, is
why I created a course for creators called copyrightcourse.com, to deal with this exact situation of where you are threatened
with copyright strikes and what to do if you do
get a copyright strike on your channel. So let’s talk about this exact situation and the law that governs
this potential dispute. Now, first a disclaimer, I
don’t know all the facts, I’ve gotten some of the facts from MxR, which are going to be necessarily bias. I’ve gotten some of the facts from Jukin, which are also going to
be necessarily biased. I don’t know all the facts, but one of the good
things about copyright law is that often it just depends on the underlying works themselves, which we can look at and we can analyze. So let’s talk about
copyright law in general, and specifically the copyrights. One of the biggest myths on the internet is that if something is out there, you can use it for almost any purpose. That’s absolutely not the case. If there is a clip on the
internet, someone owns it, it might be hard to track them down. But that clip, whether
it’s a video, a sound file or a picture, they belong to someone. And the default position of copyright law is that you need permission, a license, to be able to use that underlying work, whether it’s a picture or
a video or what have you. However, there’s an exception
to that general rule, that if you use that
media in a fair use way, you don’t need to get permission, and you also don’t have
to pay a license fee. But if it’s not fair
use, you do have to pay and the rights holder can block you from actually using that underlying media. Fair Use is incredibly complex, even judges get this wrong and often judges say this is
the most complicated portion of copyright law in all of jurisprudence. But if you go to 17 USC 107, you will find the Fair Use factors to determine whether you’re
using something in fair use. The Fair Use clause states
that notwithstanding the rest of the copyright act, for purposes such as criticism, comment, news reporting, teaching,
scholarship or research is not an infringement of copyright. And in determining whether
the use made of a work in particular case is fair use, the factors to be considered
shall include one, the purpose and character of the use. Two, the nature of the copyrighted work. Three, the amount and
substantiality of the portion used and four, the effect
upon the potential market or value of the copyrighted work. So let’s talk about that really quickly. So the first part of this section of the Copyright Act says that, generally things that are
for the purpose of commentary and criticism can be considered fair use. Now that’s not dispositive. But in order to get to
the rest of the factors, you generally need a purpose that is recognized by
the Fair Use statute. Now that’s not an exclusive
list of the things that qualify as fair use. But for intensive purposes, let’s assume that that’s
the entire universe. Now, there are four factors to determine whether the actual use itself is fair use. Now these are factors,
they’re not elements, you can’t just check them off and you have to balance
every single one of them. Just because you win one factor, doesn’t mean that the use
is going to be fair use, you have to balance all four together. And the first factor is
by far the most important. This is going to be a
gross oversimplification because there are literally
millions of pages written about fair use in American jurisprudence. A quick summary of the first factor is that this looks to the
transformativeness of the use, assuming your purpose is
recognized by the Fair Use statute. Let’s assume commentary and criticism because that’s what most YouTube
use of media falls under. Sometimes it’s parody, but usually it’s commentary and criticism. The first factor looks at
whether you have transformed the purpose of the original clip itself. So for example, a movie review. A movie review often
uses clips from the movie that it is reviewing, but it would be very, very difficult to be able to have a coherent criticism or to be able to comment on a movie without being able to use small portions of the movie itself. But how does a movie review
transform the underlying movie? The purpose of a movie generally speaking is for the entertainment value. You watch a movie because
you’re there to be entertained. But a movie review itself is not for the purpose of entertainment, you’re not usurping the
original purpose of the movie, you are making a movie review specifically to create
commentary and criticism about that movie. That is what we’re talking about when we’re talking about
transformative nature of fair use. And that’s why the Copyright
Act specifically carves out, commentary and criticism as a fair use. So that is the fair use purpose, plus the character of the
use, which is transformative. The first factor is by
far the most important and you can overcome a lot of sins and the other three factors if you have a highly
transformative use case with a clearly fair use
commentary and criticism purpose in your use. So that takes me to the second factor, the nature of the copyrighted work. This generally looks to whether
the underlying work itself is factual or fictional in nature. Copyright doesn’t want to give
people a monopoly over facts. So as a result, factual works, the things that actually
happened in real life, tend to get less protection
than things that are fictional and highly creative. This tends to be actually
the least important of the four factors. Factor number three looks to the amount and substantiality of the portion used in relation to the
copyrighted work as a whole. This is often summarized
by saying that people are only allowed to use the
minimum amount necessary, the bare minimum, to be able to get their
commentary or criticism across. So just because you’re giving
commentary or criticism doesn’t mean you’re allowed to use the entire portion of the underlying work. Sometimes you are, sometimes
the clips are very short, sometimes you’re only
dealing with the picture which you kind of have
to use the whole thing. But the bottom line is that you generally can’t
use the entire work itself or you can’t use the
heart of the work itself in order to form your
commentary or criticism. And finally, that takes
me to factor number four, the effect of the use
upon the potential market or value of the copyrighted work. This is actually pretty
similar to the third factor. The idea is that we don’t
want people using things in a fair use way that
usurps the entire market for the original work. If people are gonna watch your video and not watch the original video or not pay a license fee to the original, then that’s a factor that cuts against your claim of fair use. And it also kind of overlaps
with the first factor as well. Because the less transformative your use, the more likely you are to
use the original purpose of the underlying work and the more likely you are
to usurp the potential market for the underlying work and degrade the value of
that copyrighted work. Now, if this all sounds
incredibly squishy and ambiguous, you are entirely right. That’s sort of a feature not a bug though. The purpose of fair use is that this ambiguity and the
fact that it’s squishy, leads to flexibility, so we can carve fair use into
whatever we need it to be and we can apply it to new situations. It’s quite flexible. The problem is often
you have to go to court to be able to adjudicate these things. And it also means that there
are absolutely no absolutes. You can’t say that all
reaction videos are fair use, some are and some aren’t, it depends on the facts
of the particular case. So now that you have a
reasonably good understanding of what fair use means and its limitations and its ambiguity, let’s look at the videos
that MxR actually used, and which Jukin claims that MxR now owes them thousands of
dollars for having used. What MxR tends to do, is they
will take the general clip and then they will inset their own video in a small portion of
the rest of the frame. They’ll play the entire clip it seems and then they will react to it. So apparently Jukin
sent MxR a demand letter that referenced for Jukin owned videos that were used in three
MxR reaction videos. On that basis, Jukin claim
that MxR owes them $6,000. So let’s look at these different videos. So the first video that is at issue is them reacting to a
video of a cat sticking its tongue out. It’s only a couple seconds long. I’m gonna zoom in on MxR because I don’t want to
infringe the copyright of the cat video owner. – It made me forget about the mayonnaise and the maggots and the. – So you can see it’s
an incredibly short clip and there’s very minimal
commentary and criticism if any. Generally speaking in copyright law, you have to comment and
criticize the actual clip itself. You can’t use the clip to
comment on something else. That’s kind of the difference
between parody and satire. Parody comments on the underlying work, satire comments on something else. Parody is fair use often but satire is almost never fair use. The next video is of MxR
reacting to a volcano exploding. – Well that’s. Whoa, you see the shockwave? – [Man] Watch out for the
shockwave it’s coming. – Did you see it? Dude, that was awesome. Wasn’t that awesome Jeannie? That was so awesome. Do you want some water? – So you can see here again, they’re only playing a small
portion of this volcano video, but arguably that’s the
heart of the volcano video. You’re not gonna watch the 20 minutes of the volcano erupting. The thing you want to see
is the volcano erupting. And the commentary, if any,
is basically that’s cool, which is about as minimal as it gets. Now in this third MxR video, it appears that they’ve edited it to remove the Jukin videos. I actually couldn’t find the videos that Jukin references
in the demand letter. I wonder if they have edited those out or maybe I just wasn’t paying attention. Jukin references a girl doing a back flip and guys lighting a
trail of leaves on fire. I couldn’t find that in
this underlying video. But I do want to reference what MxR says at the very
beginning of this video. – So it’s time once again
to get Jeannie to laugh. I’ve come over yet another
brilliant compilation of funny things all in the worthy endeavor of making my beautiful
darling girlfriend laugh because she deserves happiness. – Sparkles. – They point out that
Henry is showing Jeannie these different videos to see if he can get Jeannie to laugh. In my estimation, that’s not
really commentary or criticism. That’s not a transformative purpose. And in fact, by showing those
clips in full to the audience, arguably, they’re using the clips for the exact same purpose
as they were created in the first place, to entertain people, to try and get people to laugh. And it’s entirely possible that you might not watch the Jukin videos, because you saw basically the
whole thing in MxR’s video. So some of those Fair Use factors might cut severely against
MxRs claim of fair use. It’s hard to say because
we don’t have those clips in this particular video. And there might be more or less commentary than in the prior two
videos that we looked at. Now the last thing I wanna point out is that in the beginning of this video, Henry says that he’s not going to display the audio of a particular
clip, not a Jukin clip, I don’t think but another one because he’s worried about
getting a copyright claim related to the music. And that is bad when you’re talking about potential willful behavior, which is an issue when it comes to damages that we’ll talk about in a second. So there are a lot of bad
facts in this particular video. In fact, some of these clips
might be dangerously close to a hypothetical that I
use when I give speeches about copyright and
explain things to creators. An example of something that
you might think is fair use that is clearly not fair use. The example that I come up with and this is not an actual case, this is just me hypothesizing is that. We recognize that movie
reviews are often fair use, often quintessential fair use. But imagine if you had a movie review that had the entire movie itself, the entire two hour long movie and then at the end of the movie, the movie reviewer said,
that was pretty good, or I didn’t really like that movie. You’ve got commentary and criticism, you’ve got some sort of
criticism about the movie, it was good or it was bad. But because you use the
entire movie itself, that’s clearly not the minimum necessary and the commentary itself is
also just about as minimal as it gets. So the question of whether
MxR, Henry and Jeannie, are actually doing something
that is fair use commentary and criticism or copyright infringement may turn on how courts have
looked at reaction videos in the past. So let’s look at some of those cases. And this is hilarious, because one of those cases
involves Jukin Media itself. Before we get to that, let’s talk about my favorite
fair use case of all time and that is the h3h3Productions case. In that particular case,
Hila and Ethan Kline, the comedy duo behind h3h3Productions, did a reaction video to a
video of a man named Matt Haas. It was something along the lines of park or girl versus workout guy, which is a pretty cringe worthy thing where a guy kind of stocks
a woman who’s working out on the street. And in that video, they use almost all of the entire clip itself, but they are also peppering
the 10 minute long video with lots and lots of commentary. The Southern District of New York, which is in the news for
many different reasons, sided with Hila and Ethan and said that this is a quintessential
commentary and criticism and quintessential fair use, and so they threw the case out. Now, it was a bit of a Pyrrhic victory because that required hundreds
of thousands of dollars from Ethan and Hila Kline to be able to get to that
stage of adjudication, and that was taken out
in a very early stage, on the motions, as we
say in the legal field, it didn’t even go to trial. So if you go to trial, you can expect to pay three
to four times as much. I mean, honestly 800,000
to maybe a million dollars to be able to adjudicate that. So that takes us to the Equals Three versus Jukin Media case, a case that actually
involves Jukin Media itself. This is a case that is pretty similar. You have a YouTube clip show
that is owned by Equals Three, and they are reacting to a particular clip that is owned by Jukin. This case involved close
to 20 different clips, but here’s one that is sort of emblematic of the rest of them. Jukin owned a video of a bear getting his head stuck in a bucket, and some construction
workers used to crane to get the bucket off of the bears head. The clip show used almost
all of the clip itself and then proceeded to talk about it for roughly about a minute. – Every time a bear gets his. Winnie the Pooh, it just, it gets me. – And regarding this particular clip, the court cited with Equals Three, and found that this was in fact fair use. If you were to ask me, what is the case that shows
the absolute bare minimum of commentary necessary
to make a fair use claim? I might point you to Equals
Three versus Jukin Media, which is why I have cited to that case in almost all of my videos
that rely on fair use clips. But this case is a bit of a mixed bag. The court decided as a matter of law that most of these clips were fair use, but also decided that some
could not be adjudicated, so those would have to
go to a jury to decide. And at that point, the
parties settled out of court. So it’s a bit of a mixed bag and Jukin might have been
right on some of those clips. Now, if you want an in depth analysis of the Equals Three
versus Jukin Media case, check out my friend
Leonard French’s channel, he goes into a huge amount of detail about this particular case exactly. The bottom line is that this would be an incredibly close call. MxR skating dangerously close to the line of it being not fair use. But there’s authority on both sides. And in fact, one of the cases that I would use against Jukin Nedia if I was representing MxR is a case involving Jukin Media itself. But arguments can be made on both sides. If I was representing MxR, which I’m not, I’m not your attorney and
this is not legal advice. I would advise them not to go to court because I’d be worried that
number one, they would lose. And even if they won, they would probably have to go all the way through
trial and take it to a jury, which would incur
potentially a million dollars in attorneys fees. And by the same token, stop admitting to. Stop going online and admitting
not only to liability, but potentially evidence that
could give rise to liability. Stop posting videos and
stop going on Twitter and lawyer up and talk
about what your rights are before you start digging
yourself into a bigger hole than you already have. On the other hand, if I
was Jukin Media’s attorney, which I’m not, this is not legal advice, I would probably tell them the same thing, that this is not something
you’d want to go to court over, they’ve lost on this before. And that you’re dealing with potentially not only losing this
battle, not only in court, but in the court of public opinion, but potentially attorneys
fees are on the line. One of the things about copyright law is that sometimes the loser has to pay the winners attorneys
fees, it gets really dicey. I don’t know that this
is one of those cases, but it could be on the line. But they’re bad facts and
there’s bad law for both sides. This is not something
that either side wants to take to court. And the stakes are incredibly large. I talked about earlier, that MxR might be on the
hook not just for the $6,000 that Jukin requests,
but actually $600,000. The reason is that when you’re
talking about copyright law, not only do you have to deal with what are called the actual damages, the out of pocket loss
that someone has suffered, but you also have statutory damages. And in some circumstances, where you have a willful act
by the copyright infringer, you can get $150,000 per infringement. So those four different videos that may or may not have
constituted copyright infringement could mean that MxR was on the hook for $600,000 in statutory damages, that would be up to the court. On top of that, attorneys
fees are on the table as well, which might even be more than $600,000 if this was taken to court, not to mention since we’re
dealing with DMCA takedowns and YouTube strikes, that their channel might be deleted, which I assume is their
major source of income for the household. – It’s just constantly in the fear of our channel being deleted. – So given the thousands, potentially millions of dollars at stake, is this extortion by Jukin Media against Henry and Jeannie at MxR? Well, almost certainly not, at least not the legal
definition of extortion. This might constitute the sort
of colloquial understanding of extortion, of bad guy
pushing a small person around, but it’s almost certainly
not legal extortion. We’ll talk about whether Jukin is a copyright troll in a second, but in general to be able to
form a claim for extortion under at least the federal
statute in 18 USC 1951, you have to have a wrongful claim. It has to be disconnected
from a claim of right. Jukin claims to have a good faith belief that this is copyright infringement. And on the facts as I see them, they could very well have a
meritorious copyright claim. It’s hard to say, it could go either way. But because of that,
essentially, what they’re doing is they’re just making a demand, which potentially is legal against someone who was a potential copyright infringer. Jukin Media actually left a comment on MxR’s YouTube channel, saying, “hi, we’d like the chance
to respond to this. “For starters, it’s
important to understand “that we provide a service
for video creators. “We allow them to list
their content on our website “so that TV shows publishers,
YouTubers, influencers “or advertisers can buy a
license to use their content. “We have no ill will
towards you or your channel. “In effect, you’re taking
other people’s videos “without asking them then
posting them to your channel “and making money off of them. “We never want to issue copyright strikes, “we have a duty to do so to protect “the copyright of the creators
who have signed with us. “Again, there’s no reason
we can’t work together “so that you can have
access to amazing videos “and that creators of those
videos share in the economics.” Of course, Jukin says they don’t want to issue DMCA takedowns. And the reason is because there are actual legal repercussions for levying those DMCA takedown notices. So, of course, they don’t want to do that and they don’t want to
take people to court because it’s incredibly
expensive, and they might lose. But that’s why some
people call Jukin Media a copyright troll. They get the copyrights
to various viral videos and then make demands for serious money from people that have used
those clips in other media. I reached out to both MxR and Jukin about this particular dispute. Jukin got back to me and
provided this statement, they say that they did consider fair use, but they feel that MxR’s videos don’t rise to the level of fair use and they point out that they
have paid out over $20 million to people whose videos they have licensed. But we don’t know what
percentage of Jukin revenue comes from making these demands, versus proactively
licensing this material. And in some sense, having
middlemen like this can be a very good thing because it’s often very, very hard to know who owns the rights
to these various things. Someone owns the rights
to these viral clips, but often big businesses will not use them because they might not be able
to track down who owns them, and having a middleman, like Jukin can help solve that problem and create revenue from licensing that otherwise simply wouldn’t exist. Now, if you want more detail about whether this constitutes extortion and the requirements for extortion, I recommend checking out
fellow YouTube lawyer, Richard Hoeg’s channel, where he goes into a
lot of depth about this. Now, I disagree with him
about the dollar amounts themselves being potential
evidence of a claim of extortion. Actually $1,500 per offense
is a pretty small amount if I’m honest. I know it can be a huge amount
to small YouTubers out there but in the world of copyright law, it’s a very, very small amount and it is dwarfed by the
potential devastating effects of statutory damages or
an award of attorneys fees in an actual lawsuit over this case. One of the more famous extortion cases is the case of Autumn
Jackson and Bill Cosby. Autumn Jackson claimed that she was the daughter of Bill Cosby before he was outed as a sexual predator and extorted him, said that she would ruin
his squeaky clean reputation in the news media by sowing these potentially
untrue allegations that he had fathered her out of wedlock. And one of the cases that
Richard Hoeg mentions in his video about this case is the Michael Avenatti case, is ongoing. It hasn’t led to a resolution. But one of the things
that Michael Avenatti is accused of having done is to extort a settlement out of Nike, not for his clients, but for a multi million dollar
consulting gig for himself. Lawyers are not allowed to
negotiate on their own behalf at the expense of their clients. And so that could conceivably
give rise to extortion. Michael Avenatti just
lost a motion to dismiss that legal claim. So it’s going to go to trial. We’ll see if he’s convicted on that. But when a lawyer tries to
get something from a party that they’re not legally
allowed to ask for, like a consulting gig
worth millions of dollars for their own behalf, that could potentially
give rise to extortion. Whereas here, mainly what’s happening is that Jukin is asking for payment for copyright infringement. And as we’ve talked about before, whether copyright
infringement occurred or not, or whether it’s fair use or not, is certainly an open question. By the way, some have said that YouTube should just shut this down. Jukin is abusing the copyright system, regardless of the underlying claims, and that YouTube should
just remove their ability to make these claims. Well, the problem is, this
isn’t really YouTube’s system. This is not content ID. What Jukin is talking about
here is issuing a DMCA takedown. This is written into the
Copyright Act section 512. If there is infringing
material on a website, including YouTube, you are allowed to issue a DMCA notice and have it taken down. YouTube has implemented a version of that which incurs a strike
when you get a DMCA claim. But there are also ways
to fight DMCA claims, which I’ve covered in my copyright course. So effectively YouTube
has to follow the law. When they get a DMCA claim, they have to take the video
down, they can’t ignore it and they can’t stop people
from issuing DMCA claims. It’s written into the copyright law that they just basically have to follow. And if Jukin does actually have a claim, then they have every right
to issue a DMCA takedown. Now, the Ninth Circuit
law under lens says that they have to have a good faith belief that they have a claim
of copyright infringement and they have taken into
consideration Fair Use before they have issued
that DMCA takedown. But look, if they have a claim, they have a right to issue a DMCA takedown and a copyright strike. This is serious business. I get copyright claims all
the time on my channel, but I’m very confident
in my fair use because, number one, I have a law degree. I have over a decade of
experience as a trial lawyer and copyright lawyer. And I know what I’m talking about. The big businesses have lawyers who know this stuff inside and out because the operative word
here is that it is a business. And we’ve talked about the
copyright implications. But let’s talk about these sort of, business law related things here. And even though I am not MxR lawyer, and this is #notlegaladvice, what I can say to MxR
is you need a lawyer. This is a business and
you can’t go around, just floundering around, thinking that you’re going to be safe. I asked my friend Roberto Blake, who knows the business of
YouTube better than everyone what he thought about this situation and here’s what he said. – I think when you are a
full time content creator, when you have a very significant channel, like in this situation, that you have to really think of things like a business and you have to deal with
Jukin Media like a business. They aren’t really gonna care too much about the court of public opinion. This isn’t like a YouTube drama situation, where calling them out,
really is that meaningful. YouTubers tend to get
very invested emotionally in these situations, when the real answer is to step back, treat it like a business
and call your lawyer and let them deal with it because this is a business
to business situation and you really want to
play your best cards. And when you take the step of just trying to out them in social media
or do something like that, you’re playing more the
game like a YouTuber than like an entrepreneur
and a business person that’s trying to protect
what they’ve built. – And that’s exactly right. There are huge consequences here. And you have to lawyer up either way. MxR says that they don’t have a lawyer. Well, they need to get one. And Jeannie says that she
spent half an hour going through Jukin videos. Well, number one, that is not enough time. And number two, you can’t unring the bell. Some have argued that look, Jukin admits that the licence fee is only $50, why can’t MxR just pay $200, $50 for each video, and then everyone can
go on their merry way? Well, the problem is that you’re dealing with copyright here. Once you have committed
copyright infringement, and I’m not saying that MxR has committed copyright infringement or that they can’t use
the Fair Use defense. They may not have committed infringement, and they may have that defense. If you infringe the copyright, you can’t then go back
through the database and buy the license,
that’s simply not enough. There’s statutory fees,
which are potentially huge, and it costs money to
get lawyers involved. So once the horse is out of the barn, you can’t put it back in again. If you steal a car, you can’t avoid jail time by
giving it back to the owner. And it seems the MxR has
already dug themselves further into the hole
by not having a lawyer. They said that they already
paid $2,000 to Jukin, related to two different videos, and then Jukin came back. Well, when you feed the trolls
they come back for more. – Clearly, I realized our
mistake was paying the first time because now they’re like, we have we have someone
we could just easily just get easy money out of. – A competent lawyer probably
would have made Jukin sign a release of all claims, so that MxR wouldn’t admit
liability and it would make sure that Jukin couldn’t come back for more after they paid the $2,000. But because they didn’t sign a release, Jukin can come back over
on adjudicated claims, which is exactly what Jukin did. Additionally, a lawyer would
have negotiated it down. Jukin has basically admitted
that a reasonable license for these clips is $49, which would mean that an MxR
should pay $150, not $6,000. But the problem is that because they didn’t have any foresight, they didn’t have a lawyer, they didn’t know what they were doing when it came to copyright, they could be liable for thousands more, not just the $6,000 that Jukin claims, but potentially hundreds
of thousands of dollars in statutory fees. Also a word of caution to MxR, MxR has already linked to a video that takes MxR’s side by a
channel called TheQuartering. I’d be very careful about
listening to that advice. – I strongly suggest MxR stand
up and tell them to get bent and tell him to sue them. And when they issue a copyright
strike on the channel, I would dispute it and I
would say take me to court. I don’t think they’re willing
to do that as a company, but it’s not my money. – I’m sorry if this sounds
harsh, but Jukin claim isn’t necessarily facially invalid. This is a case that could go either way. What MxR has done might be fair use, but it also might not be fair use. It would be up to a judge or jury, and reasonable minds can differ. That’s what happens when you go to court. You kind of roll the dice. Certainly lawyers who I’ve
talked to about this very case have differing ideas about it. And I would love love to tell you that MxR is clearly in the right and
Jukin is clearly in the wrong. I hate the way that they’ve gone about, trying to get money from MxR, but I don’t know that that’s the case. I love creators and I want
them to create more art, but we all have to operate
within the confines of the way the law actually is, not the way that we want it to be. And it’s possible, maybe even
probable that MxR is wrong. And MxR isn’t quite as
small as they claim, they can’t stick their head in the sand. Trolls like this go out and
they look for deep pockets. The thing is, Jukin has
taken this to court before and effectively they’ve won. We don’t know the actual outcome because there was a settlement but odds are Jukin got the
better of that particular case. And even winning can be losing
in a situation like this. Vindicating your rights could easily take half a million
dollars in attorneys fees, just ask Ethan Kline from h3h3, it took hundreds of thousands of dollars, They went through $200,000 in one month to ultimately be
successful in their claim. So don’t assume that you can
start a GoFundMe over that. Jukin doesn’t care about
what you think about it. A judge doesn’t care
about your Twitter clout or bad Yelp reviews. So just be very careful about
whose advice you listen to. And again, the best thing you
can do is talk to an attorney. And I’ve represented clients on both sides of the copyright coin. I’ve represented clients
who have had to defend against meritless claims of infringement, and I’ve also represented clients who have had their works stolen by others and had to defend their rights. It’s always a big deal
and it’s always messy. And as Roberto Blake said, they need to think about
their YouTube channel as a business. MxR plays gets 900,000
views on average per day, sometimes well over a million views a day. At a conservative CPM of
$6 with the YouTube split, if monetized their channel
would get roughly $2,500 to $3,000 per day, that equates to a
million dollars per year. That’s not a small business, that is a medium sized business,
and they need a lawyer. Now I understand that
there’s a controversy about whether their YouTube
channel is monetized or not. But I also understand that they have 10s of thousands of patrons on Patreon. And at a minimum, if they’re
paying one to $2 per month, that means that they’re
earning potentially a quarter of a million dollars per year just on Patreon alone. You can’t get away with thinking that this is just mere YouTube drama. This is real life. The stakes are incredibly high. There are hundreds of thousands
of dollars at stake here. You might end up in federal court and this is not just a
word of warning to MxR, but this is a warning to
anyone with a YouTube channel. MxR says that they’re worried they might have to stop reacting to videos and that they might just
react to pictures instead. Number one, if you are doing
things in a fair use way, then there’s no need to stop. But I think they need to ask themselves whether they are very, very certain that they have met the
Fair Use requirement. – And at this point, it’s like, I feel like we can’t even
watch any videos anymore. We can’t react to any videos period. – Like we can only look
at images and pictures. – And I will say that it is just a myth that they could forego the videos and start reacting to pictures instead, because pictures are copyrighted as well and they might run into
exactly the same problems that they run into with video, which is one of the reasons I gave a talk called the 11 myths of
copyright on the internet. If you’re a content creator, and you would like to see this free video, you can check out the
link in the description. It’s part of my course that I
created for creators out there who don’t have lawyers necessarily but they need to be protected when they’re making
videos on the internet. That’s why I created copyrightcourse.com. It is specifically created for creators to tell them what their rights are and to give them the tools that they need when they find themselves
looking down the barrel of a copyright strike, potentially getting their channel deleted. It gives them the tools that they need, including the actual language that I have used as an attorney to fight off dozens of
different copyright claims by underlying rights holders. I have never lost a claim
because as I said before, I know what I’m doing and you can use the exact
same templates that I use when I am fighting copyright
trolls on the internet. So check out the links in the description, you can check out the free
video, 11 myths of copyright, or you can go straight
to copyrightcourse.com to get the copyright course which I created so that other creators will not be in the same situation that MxR Plays find themselves in. So, do you agree with my analysis? Do you think that MxR is being extorted or that maybe they committed
light copyright infringement? How do you think that this
would turn out in court based on the precedents
that we talked about here? Leave your objections in the comments and check out this playlist over here that contains all of my
other Real Law reviews, where I talk about legal
issues in the news, including impeachment and tons of other
copyright related things. And check it out and I
will see you in court.

Posts created 26478

100 thoughts on “YouTuber Extortion? MxR Plays v. Jukin – Real Law Review // LegalEagle

  1. © Are MxR’s videos are fair use? If so, why?
    🕹Get the 11 Myths of Online Copyright for FREE: https://www.copyrightcourse.com/myth

  2. Objection: you state that Jukin could just bill MxR the ~$50 per infraction if they wanted to be 'fair' but the $50 is for people who go to them (Jukin), and pay for the content. The way MxR was identified and billed was some team of people working on looking for those infringements. Who is paying for that work? I think it's appropriate for Jukin to charge 30x for that, if only just to get people to stop infringing and go about the sourcing of the copyrighted material through the proper business channel.

  3. Moral of the story is, lawyers are like doctors. Smart people see a doctor before things go wrong in their bodies and take preventive actions. Smart people with successful businesses or income generating system see a lawyer before doing anything. Some people think that lawyers are bloodsucking vampires and unnecessary expenses on their business until they hit their head on the wall and come crying to see one, thinking lawyers would be able to wave a magic wand and fix their problems.

  4. I think the issue is why MxR is being singled out when so many other youtubers do the exact thing without seemingly going through similar circumstances. Then again, I suppose the operate word is "seemingly". It's quite possible that other creators have gone through the same thing, lawyered up and settled their affairs outside of youtube. I just can't imagine other major youtubers going through this and NOT talking about it in a video to some degree.

  5. I clicked on this video assuming you were on jukins side and prepared to be annoyed. But you made very good points here. You're right it's not clear cut. Earned a sub. I had no intention to sit through a 40 min video on copyright law but I did. And walked away having learned a lot.

  6. Interesting question, what if they recorded the video before Jukin obtained the rights to it? Just genuinely curious about it from a legal point of view, let's say I wrote a song, posted it online someone reposted it and then I sold the rights to it to somebody else, would that person who reposted it be liable for copyright infringement if the current rights holder demanded them to take it down? Like I'm assuming no but I'm not a lawyer and it kinda feels like it could go either way

  7. 800 grand in attorney fees just to be able to go to court? US copyright law is f..ed up. Just for comparison: in continental EU it would be around 1-5% of this amount, especially taking into consideration the low value of the dispute (USD 6-8000).

  8. MxR Plays should've done better at protecting themselves no doubt. However I believe the charges don't match the damages. For me that's the main sticky point. Yes, if I break the law then that I am liable however just because I'm liable that doesn't give you the right to extort an exorbitant amount of money. At what point does it stop being damages and legal fees? At what point does it cross into slapp suits and extortion?

  9. The problem I see with a lot of very loud people, is they can't separate what IS the law, versus what they think it SHOULD BE. Really frustrating.

  10. I wish those kids didn't do 2 things right from the start: Admit the video's were known to be Jukin's and pay ANY of the $6000 dollars that Jukin is attempting to get from them.

  11. The hart of the video isn't the clip. It's their personality and reaction. Also the purpose of a viral video is to go viral. So licensing them is counter to their purpose. It's like copyright claiming a trailer which does happen, but should it?

  12. Sound advice. not sure about the guy telling them to play chicken to see if Jukin backs down. It is 50/50 on that and they do not want to be on the wrong end when they go to court.

  13. Objection! When Appealing a strike Youtube specifically list "Reaction video" As a reason to dismiss the claim. So, by the rules set up by Youtube MXR did nothing wrong. Which means they are not liable for the charges being filed against them (Which Jukin has already admitted does not cost $6,000 but a mere $50.)

  14. How much of Napalm Death's song "You Suffer" can you use in your review before being striked? The song is 3 seconds long.

  15. Definitely guilty. They should get a lawyer, pay up, and learn. They didn't add to the work they showed us watching them.

  16. Jukin should have lock all its vids out of the internet…
    So No one can access it, unless people subscribe to Jukin and uploads their clips publicly…

    MxR Plays, uses vids from Reddit…
    Jukin should Complain towarda Reddit and not MxR…

    Also Jukin only threats Youtubers that possibly has money…
    Jukin is not attacking youtubers, that doesnt have 100thousands of followers…

  17. Wouldnt Jukin media have to prove that MxR had made the reaction videos after Jukin media obtained the rights to these videos.

  18. I was waiting for a video like this. Although I love Henry and Jeannie I do think that the way they do reaction vids are not comparable the the h3h3 court case at all. H3h3 heavily criticized every single part of that video with a lot of commentary and the way they used the clip could in no way be viewed as the original intent of the clip. As you've mentioned in the video Henry often litteraly just laughs at a clip meant to be funny. Seems the case for fair use goes straight out the window that way. It's pretty much like uploading a movie with you watching it and calling it fair use.

  19. The fact that Jukin can even exist in a world where media is easily obtained by an insane amount of methods, It seems like their entire company's premise is basically predatory or illogical as a foundation. It's like picturing Google coming after you for commenting on images you pulled off the web. It obviously wouldn't happen but it's the principal behind it.

    Ultimately, I WOULD suggest those kids take Jukin to court and get a lawyer. They have so much more to gain, even if they lose the court case. Also, they could easily start up a kickstarter/Gofundme and just rebound from the clash. They'll ultimately recover financially and they'll have a much larger reputation which, in turn, would get them more traffic. Whereas, Jukin has absolutely nothing to gain, and I'd hope that, as a company, they get their reputations destroyed and their company shut down.

    It's still the principal that they're basically trying to use the law to be predatory towards young kids on youtube and other media sites for shit that's EASILY obtainable. This isn't like Downloading/uploading music with Limewire/Napster back in the day; this is just trying to demonize kids for just commenting on some videos. It feels criminal and predatory in every possible way and I just can't see a rational position or reason for Jukin to exist. Jukin is literally acting like they can own memes. They can't. Please my asian friends from MxR, don't back down. Take this company to court. You'll ABSOLUTELY find financial backers both to go to court, and if you should lose, to help you recover.

    Lastly, as this video mentioned, stop admitting to things and pretending you can do these legal things alone. At least have a lawyer to get advice from and don't pay extortion level fees that companies like Jukin just pull out of thin air. It seriously don't help with how much you've paid them and how much you've admitted to the video's being their property but you still might be able to win this on the grounds of internet principality and the idea that if it's this easy to get videos and pictures and just talk about them, are they really valuable enough to call "property"? I'd argue "no".

  20. Id be very interested to find out whether jukin media buys these clips before or after creators release reaktion videos. It seems like it would be a "good" business model to follow creators and then purchase the most popularly used clips in order to copyright claim. I cant imagine ANYONE paying 49usd per clip for this kind of material.

  21. I learned about a custody case about a Kansas man and his ex from Iowa. He tells the judge he wants to settle the case in a sword duel. Could you look into his crazy claim that there's no law that prohibits this?

    https://www.theguardian.com/us-news/2020/jan/14/man-requests-sword-fight-ex-wife-lawyer-settle-legal-dispute

  22. The real issue with this case is the statement that "it always belongs to someone." Imagine someone views this very comment in a Youtube video a month from now, and I then tell them that I actually copyrighted it a year afterwards. Then I try to charge them 150K. It's like "withdrawing consent." It's patently absurd.

    Or imagine I post a selfie to reddit, and then charge anyone who views it thousands of dollars, but I wait months to do so. That is scummy behavior

    You would probably say this is okay because it follows the law. Well I'm talking actual ethics here, not your legally correct garbage. The law should be changed, and you really don't deserve the hype you get because you still talk like a stereotypical lawyer.

  23. And now we know why the fine bros always make some kind of point system when they have people reacting to videos: To try to turn it into a review.

  24. "Fair use is incredibly complex"

    This was intentional so as to make copyright enforcement easier for the big end of town.

  25. Don't make reaction videos its lazy and not creative.

    thx for this.i am waiting for a profetional insight into this. i don't want anyone "opinion" that is not a lawyer.

  26. Civil law exists because resources are scarce, copyright law exists because content is scarce. In this classic substructure-superstructure model, criminal law works like safety valves for when things get really dirty. I agree that this is a highly reductionist visualisation, maybe even inaccurate, but I somehow needed to get this out of my head. So there. And thank you for the video😊

  27. I do understand this is a very squishy situation. However I have one big problem with Jukin's claim – MxR didn't go to their page to specifically target those clips – they were shared on reddit. This does not remove Jukin's right to claim the clip, however Jukin didn't provide a way for anyone to know this is their clip. There is no watermark. And let's take your film example – a film has credits – the copyright holders are stated. In this case Jukin seem to just take advantage of the fact, that there is no way to tell if this clip belongs to them.
    I am really curious about this and id love a response. I hope my comment doesn't get buried.

  28. Just subbed! I really enjoy your videos regarding all this complex law mumbo jumbo. It was really nice to see an unbiased perspective of the situation. Never been a fan of law, but I just registered for your Copyright Course!

  29. i dont like reaction videos and people shouldnt be aloud to make money off it. but still it isnt right to just take money from people like this

  30. Ignorance may not be a defense…but similarly…how can it be an offense? Why is it not on Jukin to show/prove they own this stuff? Further, if you can't prove your right, jukin in this case, how can they demand money? Why don't they need to be proven in the right first? Is not mxr innocent until proven guilty of this infringement?

  31. The folks who review movies and only show a 10 minute portion on youtube, but then try to convince folks to sign up for their patreon to see them react to the entire movie are the ones I’ve been expecting to get hammered. I’ve been expecting Patreon to make changes.

  32. Everybody make Anonymous YouTube channels and upload all of junkins clips, we will crush these morons beneath the heel of public opinion, and it might actually do something good for once.

  33. I’m a sub of MxR and this video is disappointing. Not the legal advice and explanation of Legal Eagle. But that he’s speaking about the harsh reality of Henry & Jeannie’s situation. I do hope they get themselves a lawyer and protect themselves from future copyright trolling.

    TBH, I doubt they make, even close, to $1mil a day/week/month. MxR Mods has already been demonetized. Many of MxR Plays videos are demonetized. They make more money than me 🤦‍♂️. But i don’t think they’re getting really BIG Youtube ad money.

  34. What i find interesting that they have been doing reaction type videos for a long long while before this, for the sake of argument assuming there were clips Jukin owned rights to, Henry did say they claimed the video and took the revenue, prompting them to remove their clips since it was their and they didn't want to use it with out permission.

    How come Jukin now suddenly comes out with demands of pay upwards of 6000 or we will strike your channel with DMC and copyright strike and your channel will be shut down but if you pay we cool, tends to sound like extortion.

    Another interesting thing is that jukin have claimed on their own post that to access their video library, the license was only 50$, i believe MrX payed this before but still faced Jukin with their money claims

  35. It would be best if they could split the earnings from the video directly, everyone wins, they all get paid, but that's not how the system is set up.

  36. Amazing. Those MxR guys are living in a fantasy world. On planet Earth, YouTube is private enterprise, and it can "delete channel forever" for no reason at all. This "3 strikes" rule is just arbitrary measure, not law of the land or law of nature. Google owns you nothing – exact amount that you payed for hosing your videos.
    Want to "have power against it"? – here is crazy idea: have your own server.

  37. I appreciate your video on this subject. I can see both sides, and we all want this to go away beneficially for both sides.

  38. I don't think the problem here is the set of facts at hand. If anything, I'd regretfully side with Jukin on their legal rights here. The issue, to me, seems to be the overwhelming cost involved even just to have a chance at standing up against these kinds of claims. Basically no one can throw around a million dollars to defend themselves. In this way, the system is, if not by design than by implementation, completely unfair and highly damaging to "normal" people. Yes, they may have cost Jukin money. That's not ok if indeed it is the case and they are not operating under fair use. But the punishment should match the crime, and if you ruin someone's life over cat videos, that's a bit much.

    MxR should find another way to make their scratch on youtube.

  39. predna law…

    jukin is the youtube version of predna law… nothing at all like shutterstock (photog who has used shutterstock)

    they are trolls, abusing the legal system to make money off of others hard work.

    they need to be shut down and jailed like predna law.

  40. Sounds like they should settle, and if they can't afford it ask them if they are willing to accept a smaller amount. If it is less than they owe, perhaps offer the entire amount of money they made on those videos. Losing the profit from the 4 videos probably won't break them.

  41. Yeah, MxR should just pay up, and maybe rethink how they commentate on videos because the way they do it now is not really covered by copyright laws.

  42. Maybe it's terrible of me to think… But I have a ton more respect for you @legaleagle than I did before watching this video. I figured you would be selling out for upvotes and views, by backing the YouTube mob and only saying how MxR are angles and we should demonize Jukin Media. The fact that you presented the facts and stayed impartial shows you have character that I didn't expect. Mad props!

  43. "They might just react to pictures instead."
    Yeah, those aren't made by people who own the rights.
    screams in artist
    I don't know why anyone would feel bad for these two :/

  44. I've heard bad things about Jukin, like they screw original content makers. The best advice would seem to be, to avoid them like the plague.

  45. Those two are just idiots, he's an even bigger idiot for trying to please her by showing her videos from others and reacting to it, their followers are the worst fools for being entertained by these idiots

  46. YouTube consistently unsubs me from all kinds of channels, but I get resubbed to you after leaving you for who I feel is an infinitely more entertaining and informative lawyer YouTuber.
    Whether or not Jukin Media are in the right for their claim (which I sure as hell disagree with) they apparently have struck channels even after extorting them. I don't trust them at all.

  47. I love how you fairly looked at this. I find jukin media's actions as gross, but most everyone talking about this seemed emotionally invested rather than intellectually like that last video you mentioned. I hope mxr wins this fight and maybe we get a better definition of fair use because it seems… I'm not happy with what it is right now if what you say is accurate (which I'm assuming it is)

  48. Me(not from US): This seems complicated, you guys should probably get a court to sort this out.
    MxR/Jukin: No! Are you crazy, we can't do that! It would screw us financially!
    Me: Say what now?!
    MxR/Jukin: It could cost millions of dollars to sort out this legal dispute through the justice system.
    Me: So if i'm the victim of a crime, it could ruin me if I try to do anything about it? Y'all Americans need to fix your system!

  49. I would love to see a video of DJ responding to one of these troll copyright claims on his account, bet they'd shit themselves seeing an attorney reply to them LOL

  50. Well said, sir… Thank you for taking the time and offering your expertise in this matter. Your even-handed analysis, presenting both sides arguments on your understanding of their merits has given me pause. It's so very easy to get swept up in the emotion of situations like this, and as you stated numerous times, that is PRECISELY why they need a dispassionate, level headed, expert advocate, to advise them on the best way to handle their business.

    That said… #MxRPlays #MxRmy

  51. I want to point out what a wonderful marketing piece this is. Legal Eagle has staked himself out as an expert on copyright law from this and his other videos. He makes a number of unsubstantiated claims in the video (this does not me that these claims are not true) about his legal practice. To meet the minimum of his claims, he would have to had at least 2 copyright cases in the last 10 years. So, this is a marvelous piece of edification. I want to be very clear:
    1 – I am not saying he is wrong
    2 – I am not saying that he does not have extensive experience.
    3 – I am not claiming that he has lost a copyright case.

    I am trying to point out what a wonderful piece of marketing this is for both his practice and his course. I think it is a great example for those that watch this channel to see how this is done.

  52. So, basically MxR can't win because they don't have a literal million dollars to burn and because copyright law still sucks. What the hell are people paying so much money for in modern court and legalese? Sounds like a lot of people are being overpaid somewhere.

  53. no one goes to the channel to see the vids they are commenting on, they go to see the interaction between the two presenters. the vids are secondary to the purpose of the channel. they are not making money off of the vids, but off of their reactions, however minimal that may be at times.

    edit: none of the vids i've seen on the channel, not all obvs, would be vids i would "pay to see". most 'viral' vids are viral because they are free. put them behind a paywall and watch them die. so… if they can't make money on their own account, how can any use infringe on their ability to make money.

  54. I think the play is just to pay the fees, then buy a license from them. It's better than the alternative and paying 50 bucks for a clip instead of 1500 might actually let you make a profit. Also adding more commentary might help. And maybe sticking to pictures.

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