MxR Plays had poor legal sense, but excellent YouTube sense
I am not a lawyer. I am not your lawyer, nor am I lawyers for MxR Plays or Jukin Media. This is not legal advice.
The Jukin Media and MxR Plays saga has come to an end, with MxR Plays and Jukin Media reaching a mutual agreement on the matter. In the wake of this saga, it is interesting to consider in retrospect the things which were said about the case, and what we can take away from it.
Background and legal opinions
MxR Plays is a ‘reaction video’ YouTube channel, where creators Henry Liang and Jeannie Lee play various viral or funny videos and film their reactions to them. Jukin Media alleges that MxR Plays played videos owned by Jukin Media, and therefore infringed on Jukin Media's copyright. When Jukin Media demanded that MxR Plays pay $6000 in fees or else face potential deletion of their YouTube channel, Henry and Jeannie took to YouTube to air their grievances about this perceived ‘extortion’.
The case has risen to great prominence in the YouTube news cycle, and has induced hordes of armchair lawyers to weigh in on the matter. Comment sections on articles and videos about the topic are filled with highly-upvoted claims that MxR Plays' use of the videos is ‘clearly’ fair use, and Jukin Media is ‘clearly’ in the wrong.
Unfortunately, though, this is not the case. As YouTube lawyer LegalEagle explains, in a video which I highly recommend watching, fair use law is (deliberately) vague and ambiguous, and the only definitive way to know whether or not a use of a copyrighted work is fair is to go to court. MxR Plays' use of videos would push the boundaries of fair use into territory never before tested in court.
The most similar case that we are able to refer to is Equals Three, LLC v. Jukin Media Inc., aptly involving Jukin Media itself and another reaction video channel. In most reaction videos involved in that case, most of Equals Three's videos were highly transformative upon Jukin Media's copyrighted works, and Equals Three engaged in a substantial amount of commentary and criticism – as Legal Eagle opines, to a far greater extent than MxR Plays did in their videos.
Yet even in the Equals Three case, of the 18 Equals Three episodes alleged to infringe Jukin Media's copyright, the judge found only 17 were fair use. A determination on the final episode was to proceed to trial, but Equals Three and Jukin Media settled out of court before the conclusion of the trial, leaving Equals Three hundreds of thousands if not millions of dollars out of pocket.
In the setting of MxR Plays' videos being, in the view of Legal Eagle, significantly less transformative than those in the Equals Three case, there is therefore a very real possibility that MxR Plays' videos were not fair use, and did infringe Jukin Media's copyright. In that event, MxR Plays could have been looking at a cost, on par with Equals Three, of hundreds of thousands if not millions of dollars, across actual damages, statutory damages and lawyers' fees.
MxR Plays made a bad legal decision
In view of the very real possibility of very significant costs, the legally sensible thing for MxR Plays to do should have been, as Legal Eagle notes, to lawyer up – not to go on YouTube and admit to facts that might have been to Jukin Media's favour!
As Roberto Blake explains in Legal Eagle's video:
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 going to 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.
… 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.
But it made excellent YouTube sense
However, despite this apparent legal misstep, MxR Plays has apparently done very well out of this whole saga. They have drummed up substantial publicity in their favour, and they have reached a settlement with Jukin Media which they say they are ‘very happy with’. Why is this?
In my opinion, this is because, while MxR Plays' decision to go public was disastrous from a legal perspective, it was incredible genius from a YouTube influencer's internet-savvy perspective.
MxR Plays is no small fry. Prior to this saga, they had over 800,000 subscribers, and nearly 250 million total views. By taking their grievances public, Henry and Jeannie knew that they would be able to mobilise their fanbase, capitalise on disdain by viewers and creators alike for the current copyright framework, and garner sympathy for their position – turning the tables on their usual format and making themselves the viral sensation.
On its own, this might not have been enough to net them a win, but Jukin Media itself was also particularly susceptible to this form of guerilla activism, for despite Roberto Blake's claim that Jukin Media ‘aren't … going to care … about the court of public opinion’, this could not be further from the truth – Jukin Media's entire business model relies on goodwill from the general public.
Jukin Media operates by scouring the internet for up-and-coming viral content, made by ordinary people, and getting in touch with those people to license the rights to them.
In response to their treatment of MxR Plays, supporters came out in force to destroy Jukin Media's reputation online. As an example, this tweet sent by Jukin Media, courting a potential customer, was inundated with replies accusing Jukin Media of being ‘scam artists’ and extortionists. The original tweet received one like, but critical replies received hundreds. Jukin Media's tweet has now been deleted, and Jukin Media's potential customer replied they had ‘no intentions’ of doing a deal. Such was the firestorm that Jukin Media CEO Jonathan Skogmo was forced to close his Twitter account.
Jukin Media might not care about the court of public opinion, but its customers, ordinary internet users far more sympathetic to the likes of MxR Plays than to faceless corporations, certainly do. MxR Plays' move to mobilise the internet to directly interfere with Jukin Media's ability to do business was modern, unorthodox and legally questionable, but undoubtedly highly effective.
Lessons to learn
This is not the first time that widespread internet unrest has defeated what may otherwise have been a valid legal claim. I am reminded of the AACS encryption key controversy, involving attempts to censor a cryptographic key which could be used to infringe copyright on HD-DVD and Blu-Ray discs. Internet users mobilised in force, and the Streisand effect kicked in on a heretofore-unseen scale, rendering all attempts to censor the key's distribution laughably ineffective.
Michael Ayers, an attorney for Toshiba Corporation at the time, remarked:
If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept.
What experiences like the AACS controversy and this present MxR Plays saga tell us is that, fundamentally, even before any matters like constitutionality or other technical considerations, the law must serve public opinion. In a very real sense, ‘might makes right’, and especially in the age of the internet, a dissatisfied public has far more might than the words of a law.