[Author’s Note: I am no solicitor, I am no lawyer. I have neither passed the bar nor am I admitted to the roll of solicitors. Thus, everything I write is simply my opinion as I see it and should not be considered legal advice or whatever.]
Last Friday (25th), popular YouTuber Akilah Obviously (Akilah Hughes) filed a complaint (henceforth referred to as ‘The Complaint’) against another (more) popular YouTuber, Sargon of Akkad (Carl Benjamin), making two Claims for Relief: Federal Copyright Infringement and DMCA Misrepresentation. The Complaint comes hot off the tails of the recent H3H3 Productions case, when Matt Hoss filed a similar copyright infringement lawsuit against H3H3, which he ultimately lost. There are many similarities between the two cases.
Ironically, the Law Firm representing Akilah once offered to assist Sargon when he was being false DMCA’d back in March. They are also the same law firm that once worked for H3H3, before they were fired.
The Complaint explains that “[D]uring the night of the stunning 2017 Presidential election, Hughes had the rare opportunity to cover the live events taking place at Democratic candidate Hillary Clinton’s watch party … [U]sing this priceless material, Hughes created, edited, and published an original video essay detailing her unique viewpoint and sharing footage shot throughout this unforgettable night.” The video essay in question is a nine minute fifty second long vlog about her experience at the ‘party’. She uploaded the video on November 18, 2016.
Shortly after, Sargon edited together his own version of her vlog, trimming it down to 15% of the length (one minute twenty-eight seconds long), juxtaposing six key segments of contradictory statements for purpose of commentary, parody and satire. He uploaded it to his channel, “The New Memedia”, on November 19, 2016, titling the new video “SJW Levels of Awareness”.
Akilah then used the in-house YouTube reporting system to have the video taken down, which it duly was. Sargon appealed, stating “my use of your work was entirely transformative (as in, my video was not a direct copy of your own) and intended for parody.” The Complaint argues this appeal contains “blatantly inaccurate statements and assertions, thus committing perjury” which, in my humble opinion, is ridiculous. He then uploaded the video to both his Minds and Twitter accounts. A version can still be found online.
He had also attempted to reach out to Akilah via Twitter, asking to “resolve this amicably like adults” because “[I]t literally is satire”. He also stated he was willing to co-operate, saying he is “Happy to get this done ASAP”. She refused on the grounds he re-uploaded her video with ‘SJW’ in the title. Sad!
Before I analyse The Complaint and give my humble opinion on it, I wish to note my biggest grievances with this lawsuit. This lawsuit serves not just as an attempt to silence Sargon but, to ruin him, all because he mocked her. Akilah has admitted in the comments section she wants his money but, it’s the doxing in The Complaint that really infuriates me. His full address is listed (almost gleefully) whilst hers is simply given as “New York, New York”. Even by doxing standards, this is cowardly. The link to The Complaint above has his address redacted, I ask our readers to respect Sargon’s privacy.
The Complaint also betrays her other motive, in Paragraphs Three and Four it states “Defendants, particularly Benjamin, have been habitually outspoken against many of the political positions for which Hughes campaigns and which were included in her election night video. In an attempt to discredit Hughes and her political positions and without a license or permission, Defendants copied and uploaded wholesale reproductions of Hughes’s original content onto the Internet … As a result of this willful and malicious conduct, Hughes is forced to file this action for injunctive relief, actual or statutory damages, attorneys’ fees, and costs for Defendants’ abhorrent behavior concerning their unauthorized use, reproduction, and distribution of Hughes’s copyrighted work.” She’s suing him because he criticised her without her permission and she didn’t like it. Pathetic.
I noticed two running themes in The Complaint pertaining Copyright Infringement, these are:
- Meaning, Commentary and Transformative Media
- Damage and Harm (to Akilah)
The Claim refutes the fair use argument employed by Sargon because “[T]he Infringing Work provides no additional content, commentary, or criticism of the Copyrighted Work, its contents, or Hughes, and contains no additional expression whatsoever; it is a bare, retitled compilation of clips of the Copyrighted Work. Defendants include no original content in the Infringing Work.” The change in title plus the re-editing causes the new video to be a commentary on and criticism of the original because it juxtaposes contradictory comments made by Akilah. This is protected under commentary albeit, his commentary is implicit rather than explicit. Tim Pool explains it perfectly, as well as many other points.
Also, the video has a new meaning, that is to say the message is different. The Complaint claims “The Infringing Work contains no new meaning or original expression beyond that embodied in the Copyrighted Work nor does it contain a single modification or even parody the Copyrighted Work.” Akilah’s video is about her night and the pain suffered because of Hilary’s loss. Sargon’s video is about contradictions in Akilah’s statements and how she lacks any awareness, be it of herself or of politics in general. Hers is a vlog, his is a critique and they serve two different purposes. By definition under 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use, this is fair use.
The Complaint actually trips itself up on this, in Paragraphs 21, 22, 30, 51, 58 & 60, The Complaint repeatedly makes the point that Sargon’s video contains no new meaning and is essentially the same video as Akilah’s (not transformative), even going so far as to say in Paragraph 22 “Simply put, Defendants merely downloaded, copied, and re-uploaded substantial portions of the Copyrighted Work without the authorization of the copyright owner, Hughes.” Yet, in Paragraph 20, it openly admits the Sargon video is a “one minute and twenty-eight second series of clips” so is thus considerably shorter in length and thus does not feature ‘substantial portions’ of Akilah’s video (it’s 15%). And, in Paragraph 3, it says “In an attempt to discredit Hughes and her political positions and without a license or permission, Defendants copied and uploaded wholesale reproductions of Hughes’s original content onto the Internet”, thus stating that Sargon’s video serves a different purpose than Akilah’s, rendering it transformative.
[Whilst Sargon’s video is considerably shorter than Akilah’s, this does not necessarily free him from the claims. The H3H3 ruling argued that timing can be considered but is not final, hence why Akilah has waited so long to file her complaint. However, CAMPBELL, aka SKYYWALKER, et al. v. ACUFF ROSE MUSIC, INC. found that using little material can be considered acceptable, depending how it is used.]
There’s also the question of harm, did Sargon’s video steal views from Akilah’s video? Well, looking at the videos that precede and succeed the video in, I would say it did as well as could be expected, if not: slightly better. I can see no measurable harm. In fact, out of all the videos that were uploaded around that time, it is seventh most popular (out of thirty).
The Complaint claims in Paragraph 19 the original video “was on its way to becoming one of Hughes’s most popular videos.” I do not know how she arrived at that position. The video is her 66th most popular video (correct at time of writing), how could she possibly have known on that day what it would go on to become?
In fact, the majority of her most viewed videos are two to three years old; it would appear her channel was already going downhill by the time she made her video. Only 2 out of her 25 most viewed videos were made in the last 12 months (correct at time of writing). For the video to make the top 25, it would need nearly three times the number of views it currently has. It’s not even close.
I do not know how she intends on proving his video caused her to lose views, how it cost her money or, how it in any way caused her any measurable harm. The only ‘harm’ that has been committed is against her fragile, little ego. If anything, his video would have led people to hers thus increasing her number of views.
Allegedly, Sargon’s video was not monetised thus, for her to claim he stole money from her via advertising revenue (Paragraph 44) is false. She also wishes to claim back damages for stolen revenue which, if it is true he did not monetise, will be zilch. This also classifies his video as ‘non-profit’ which will help him argue fair use.
The second claim (DMCA misrepresentation) is as flimsy as the first, The Complaint states “Benjamin, as the signatory acting as agent for Defendants, did in fact submit the Counter Notice containing blatantly inaccurate statements and assertions, thus committing perjury.” The Counter Notice containing these alleged “blatantly inaccurate statements and assertions” is here:
As has been argued already, his piece is transformative and it fits the definitions of satire and parody. And, as he genuinely has a “good faith belief” the material was removed due to a mistake (as evidenced by his belief and assertions the work is transformative and satirical), it is thus spurious to claim Perjury and DMCA Misrepresentation.
The Prayers for Relief are simple. Akilah wants “an injunction ordering that Defendants, their agents, servants, employees, and all other persons in privity or acting in concert with them be enjoined and restrained from:
- a) reproducing or distributing any of Hughes’ copyrighted works; and
- b) from in any manner infringing or contributing to or participating in the infringement by others of any of the copyrights in Hughes’ works, and from acting in concert with, aiding, or abetting others to infringe any of said copyrights in any way”
Reads like she wants everyone to shut up.
Akilah also wants payment for “any actual or statutory damages … of up to $30,000 for each copyrighted work infringed for all infringements with respect to that work [and] $150,000 for each copyrighted work infringed for all willful infringements with respect to that work.” Sargon will also “be required to pay to Hughes actual and punitive damages, including costs and attorneys’ fees”, as well as other costs. If Sargon loses, it’ll be costly.
Options available to Sargon, assuming he is properly served the papers (there’s enough International Law to allow it):
If he doesn’t turn up, she automatically wins. This is not a good idea because the courts have powers to be able to extract the winnings (should she win damages, etc) from YouTube/Google, Patreon, and Paypal as they are all American companies. Akilah has also implied she will be targeting his Patreon and Paypal as well so, that’s something to worry about. That being said, Google in the EU is a separate and independent company registered in Ireland (Company Number IE6388047V) so, theoretically, because he uploaded via Google EU (YouTube), the courts cannot force YouTube to divert money to Akilah. As for Patreon and Paypal, she could badger them with the court order to such a point they give her the money or, refuse to maintain business with Sargon.
The more preferable of the options. He can file a motion to dismiss or provide an answer to the claims. As just said, Google in the EU is a separate and independent company registered in Ireland (Company Number IE6388047V). So, theoretically, he could argue that he is bound by EU/UK laws and he used a European company to upload the video thus, the case could be dismissed.
Also, Judges consider four points when presiding over arguments of fair use:
- The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
As I feel I have proved in this article, Sargon is safe on all four points. Thus, to answer the claims, he could prove fair-use.
We have not yet had an official response from Sargon pertaining his next steps. Naturally, I would recommend fighting.
In conclusion, this lawsuit could potentially set a very dangerous precedent. If she wins, channels that feature ‘clips’ as their main selling point (eg, clips from speeches, TV shows, films, etc) could all fall victim to this under the same claims Akilah is bringing forward. This could spell the end of ‘compilations’ channels. However, I doubt she will win. Sargon has a very strong case from my perspective and he should fight this.
Since the lawsuit became public knowledge, Akilah has uploaded a bizarre video misrepresenting the lawsuit and then bragging (if one can use that word) how she is beautiful and gets laid a lot. As I said, it’s a bizarre video.
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