I am skipping the introduction of the parties.
While Point 14. 15 are likely to be true, 16 and 17 are incorrect. Personal jurisdiction requires, at least, minimum contacts with the forum state. See, for example, International Shoe Co. v. Washington, 326 U.S. 310 (1945). Minimum contacts sounds a bit misleading, since the connection between a party and the state must still be "substantial". There is a requirement for there to be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). Mere making of videos or the like is not enough. As the Supreme Court has put it " The "substantial connection" between a defendant and the forum State necessary for a finding of minimum contacts must derive from an action purposely directed toward the forum State, and the mere placement of a product into the stream of commerce is not such an act, even if done with an awareness that the stream will sweep the product into the forum State absent additional conduct indicating an intent to serve the forum state market.". See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). Further the "substantial connection" must derive from an actions that are "systematic and continuous", and there is a need for such actions to have created a "cause of action arising from dealings entirely distinct from those activities". See International Shoe Co. v. Washington, 326 U.S. 310 (1945).
Issuing a DMCA notice is very unlikely to serve as a minimum contact, and as such I would claim court has no jurisdiction on Emily Rebolo.
For the same reasons explained above, I say that the court has no jurisdiction over the defendants in point 17. There's not even an allegation that they conspired in California, for example. One of the defendants lives in Portugal (IIRC) which creates big jurisdiction problems.
Now we move on to the facts section. I will not address facts that are either uncontested, or not exactly relevant.
1. There is a way to download directly from Twitch. See, for example, untwitch.com or yt-dll.
2. There are many more ways to see any portion of that stream without illegally downloading. They might have received it from their friends, for example.
3. Illegal download of a work if for the purposes of using it in a way that conforms with Fair Use is legal and itself part of Fair Use. See Google LLC v. Oracle America, Inc., 593 U.S.(2021), and these two 9th circuit cases (this lawsuit is in California which is part of 9th circuit) Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
While I don't claim to be an expert on joint-ownership on copyright, as far as I am aware, bar any agreement between a parties, each party can profit as they please as long as they don't give exclusive rights to copyright to a non-co-owner. Re:Exclusive rights, see Tresona Multimedia, LLC v. Burbank High Vocal Music, 17-56006 (9th Cir. 2020). Re: Profit, see Basil v. New Razor & Tie Enters., B299985 (Cal. Ct. App. Aug. 27, 2020)
Skibbidy is a joint author. If authors involved in its creation of the work intend for it to be joint ownership (like pressingly Skibiddy did), then so it is. Furthermore, even if he wasn't, he still could have a copyright interest in his part of the work. See (for both claims) Garcia v. Google, Inc., 766 F.3d 929 (9th Cir. 2014)
I think it's clear that the works fall under the
de minimis exception, and as such are not copyrightable.
See, for example, Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991)
.
What I believe Acerthorn is referring to, is that the Judge in this case issued an order to stay this case until Stebbins v Polano is resolved. See:
1. Actual Malice (a standard for Defamation law regarding Public Figures) has nothing to do with Fair Use, or copyright in general.
2. That's not how Res Judicata works. You can't win a copyright claim against defendant A and in another case claim res judicata to win against defendant B (that's ignoring the fact that res judicata is used by the defendants, not plaintiffs)
None of these things have anything to do with Copyright or fair use. Harassment does not "nullify" fair use.
1. Why should she have known you two were in litigation?
2. The fact that you two are in litigation does not make that clip illegal to use
3. Viewing of clips is not infringement of copyright and I can find no case to suggest it is.
1. The cited case comes from an entirely different circuit (8th as opposed to this one, 9th)
2. It is not an appellate case
3. You are incorrect on the copyright aspects (for reasons I addressed when I was addressing his point 26)
4. Given that the rest of your claim is based on a flawed premise, it too is incorrect
5. The cited case made it very clear that knowing that your action was illegal was important
6. Downloading a song illegally, is not the same as viewing an edited clip sent to you by someone else
Note that no proof is offered that any of this happened. That being said:
1. First sale rule is irrelevant as it requires legal ownership (by say buying), see 17 U.S. Code § 109.
2. You can distribute copies, as long as you provide enough along with it to make it transformative.
Despite saying this link points to Emily's channel, it instead points to acerthorns. See:
Describing what happened in the clip and then playing it can be transformative if it is used in a larger commentary, which as you allege (from my read of it) it is. After all, this was but "one point" of the video.
I think I found the original video:
I think after looking in the video it is very transformative. The bit Acerthorn complains about is just a few seconds long. Let's play it shall we?
This small clip, of which Emily only used a still image of his video, is only ~11 seconds long, and is ~1% of the full video which is 16 minutes long.
DMCA is not magic. As the 9th circuit pointed out, "DMCA did not simply rewrite copyright law for the on-line world". They also said "Far short of adopting enhanced or wholly new standards to evaluate claims of copyright infringement against online service providers, Congress provided that OCILLA's "limitations of liability apply if the provider is found to be liable
under existing principles of law." ". See Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004). Youtube has many defenses that make it non-liable, nor does it meet the requirements for vicarious liability, because it runs no ad spots on the video, therefore being unable to get money from people wishing to buy those spots (thereby not fulfilling the "direct financial benefit" part of vicarious liability". This is a moot point, however, considering the video is fair use.
I've gone back to add this comment:
"The DMCA established certain safe harbors to "provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools." These safe harbors limit liability but "do not affect the question of ultimate liability under the various doctrines of direct, vicarious, and contributory liability," " Perfect 10, Inc. v. Ccbill LLC, 481 F.3d 751, 488 F.3d 1102 (9th Cir. 2007). This means that the fact he filed a DMCA is not at all relevant to whatever or not Youtube is liable for copyright. As 4th circuit had pointed out before, "the DMCA is irrelevant to determining what constitutes a prima facie case of copyright infringement." Costar Group, Inc. v. Loopnet, Inc., 373 F.3d 544 (4th Cir. 2004)
1. You don't have to critique every single pixel. It is perfectly legal to use an image of your livestream to critique you being illiterate and not critique your channel art.
2. Regardless, this is all moot as you own no copyright on any of them:
I will not address parts he literally copy pasted. Can't critique anything else because I have not seen the video. Re: Unclean hands, it is an affirmative defense, one typically raised by the defendant
against the Plaintiff
1. Your videos add up to ~120 minutes. Creetosis vidoes amount to ~1167 minutes. His videos are nearly ten times longer. So, while indeed he used all of your video, he provided nearly 10 times more content.
2. The video is highly transformative
3. Contrary to Acerthorn's claim, this video does not serve as a substitute to his own. People who will watch this video are not the audience Acerthorn would get, it would be a audience critical of his work.
4. Acerthorn's citations are badly used, and do not reflect the current situation. Yes, had Creetosis simply copied your video and left it with minimal added commentary, that may as Hustler points out, "militate against a finding of fair use". That is not the case here, however, and his other citations similarly fail.
I assert that Creetosis videos are more than clearly fair use.
Another copypaste.
Acerthorn is butthurt by a meme, lol.
Re: Illegality, I already addressed it, and a meme, by nature is transformative
