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  1. #1
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    Triller Hits H3 Podcast With $50m Jake Paul Piracy Lawsuit, Judge Guts Original Compl

    Hidden Content
    Triller's legal campaign against entities that allegedly streamed the Jake Paul boxing match has taken two new and significant turns. After the judge gutted the original lawsuit targeting several sites, dismissing all but one of them from a $100m lawsuit, Triller has now filed a second complaint, demanding $50m from the popular H3 Podcast.Triller’s legal campaign against sites and other entities that allegedly streamed the Jake Paul vs. Ben Askren fight on April 17 is fast becoming an entertainment product in its own right.Triller began by filing a $100m complaint against several domains and individuals, describing them as “business entities” that breached its copyrights. On the heels of this complaint, Triller launched an amnesty program, advising people who watched the fight illegally to pay $49.99 to avoid being sucked into its litigation drive.As reported last week, Triller asked the court for permission to subpoena YouTube and Google to obtain information against the defendants, so that it could build a more thorough case against them. Now, however, it’s clear the court isn’t happy with the way the lawsuit is being pursued.

    Triller Fails To Convince Judge, Lawsuit in Peril
    Previously, Judge Percy Anderson raised questions over Triller’s claims that the defendants in the lawsuit acted together to infringe the company’s rights. Noting that Triller had not presented any well-pleaded facts to support this allegation, the Judge put the company on notice, warning that he could drop one or more defendants from the lawsuit. Triller did file a response but completely failed to convince the court.Triller previously insisted that the defendants acted jointly, noting that they were all connected due to each entity being involved in the illegal distribution of the Jake Paul fight. The Judge found this unconvincing and explained that Triller had offered no evidence to show anything other than the defendants acting independently.“Put simply, the Court provided Plaintiff with an opportunity to provide the Court with some evidentiary basis to support its conclusory allegations supporting joinder of these Defendants. Plaintiff’s failure to provide any such evidence and Ex Parte Application for Expedited Discovery indicates that it currently lacks facts to support joinder and calls into question the adequacy of Plaintiff’s compliance with its pre-suit investigation obligations..,” Judge Anderson responded.In respect of Triller’s demand to have Google and YouTube hand over information on the defendants as a matter of urgency, so that it could file for a preliminary injunction to prevent further infringement, the Judge said that would not be happening either.“According to Plaintiff, a preliminary injunction is necessary to prevent the irreparable harm of Defendants continuing to offer the Broadcast without authorization. Plaintiff does not, however, explain what irreparable harm it continues to suffer from the availability of copies of a live sporting event that occurred weeks ago, the outcome of which is publicly available, and lasted less than two minutes,” he wrote.

    Judge Guts Triller’s $100m Lawsuit
    After denying Triller’s application for expedited discovery, the Judge has also gone ahead with his threat to dismiss several defendants from the lawsuit. AccessTVPro.co, Online2LiveStreams.us, CrackStreamsLive.com, Sports-Today.club, My-Sports.club, BilaSport.com, Trendy Clips, Mike, Your Extra, Eclipt Gaming, ItsLilBrandon, and the H3 Podcast were all dismissed, leaving FilmDaily.com as the sole defendant.While the dismissed defendants may see this as a victory, the Judge clearly stated that Triller was not being prevented from filing additional lawsuits against these defendants in the future. The main problem was their joining in the same lawsuit as cooperating parties and the possibility that the illegal conduct of one defendant could be wrongly attributed to another independent defendant.The big question, then, was whether Triller would simply focus on FilmDaily.com or if it would begin filing additional lawsuits. That question has now been answered after Triller filed an individual lawsuit targeting the H3 Podcast, demanding huge financial compensation.

    Triller: H3 Podcast Alone Caused $50m in Damages
    The new complaint against the H3 Podcast follows a similar format to Triller’s original lawsuit, albeit with some modifications. The claims for two types of copyright infringement, violations of the Federal Communications Act (FCA), conversion, and violations of the Computer Fraud and Abuse Act stand, while claims for breach of contract and conspiracy have now been removed.The claims center on the YouTube channel of the H3 Podcast, from where it’s alleged its operators “unlawfully uploaded, distributed, and publicly displayed” the fight in breach of Triller’s rights and from where infringement continues to this day.“Defendant’s calculated and reprehensible infringement, theft, and other unlawful acts — committed in knowing violation of the law — has resulted in damages suffered by Plaintiff in excess of $50,000,000.00, by stealing and diverting upwards of 1,000,000 unique viewers of the illegal and unauthorized viewings of the Broadcast from Plaintiff,” the complaint reads.Whether Triller will file additional lawsuits covering the other defendants dismissed from the original complaint is currently unclear. What is obvious, however, is that the mainstream visibility of the H3 Podcast and its hosts, Ethan and Hila Klein, has made that ‘business entity’ the easiest to pursue.

  2. #2
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    Triller Files Three New Lawsuits Against Jake Paul Boxing Match Pirates

    Triller's legal campaign against entities that allegedly streamed the Jake Paul boxing match is on the move again after three new lawsuits were filed in a California court on Thursday. The suits target several companies and individuals behind a Canada-based streaming platform, a YouTuber, and the alleged operator of an online streaming portal.

    TrillerAfter the Jake Paul vs. Ben Askren fight was streamed illegally online, Triller filed a $100m complaint against several domains and individuals, describing them as “business entities” that breached its copyrights.

    This was supported by an amnesty program, advising people who watched the fight illegally to pay $49.99 to avoid being sucked into Triller’s litigation drive.

    The early steps didn’t go smoothly. Judge Percy Anderson wasn’t happy that Triller had bundled several entities (FilmDaily.com, AccessTVPro.co, Online2LiveStream.us, CrackStreamsLive.com, Sports-Today.club, My-Sports.club, BilaSport.com, Trendy Clips, Mike, Your Extra, Eclipt Gaming, ItsLilBrandon, and H3 Podcast) into one lawsuit.

    The Judge said that joining them all in the same action as cooperating parties raised the possibility that the illegal conduct of one defendant could be wrongly attributed to another independent defendant.

    As a result, the Court ordered all defendants other than FilmDaily.com to be dismissed. Triller responded by filing a separate lawsuit against the H3 Podcast has now followed up with separate lawsuits against three of the original defendants. This time around, Triller is being rather more specific.

    First Triller Lawsuit Targets Online2LiveStream.us
    In a lawsuit filed in a California court Thursday, Triller names Robiul Awal, Robiul Islam, Online2LiveStream.us and Does 1 to 10 as defendants. The complaint begins by following the format of the original lawsuit and names Awal and Islam as the alleged owners and/or operators of Online2LiveStream.us.

    The lawsuit alleges that all defendants operated as part of a conspiracy, with Awal and Islam operating their site as a device to avoid liability.

    “Defendant Online2LiveStream are, and at all times herein mentioned were, controlled, dominated, and operated by Defendants Awal and Islam as their alter ego, in that the activities and business of Defendant Online2LiveStream were carried out without annual meetings, and without keeping records or minutes of any proceedings, or maintaining written resolutions,” the complaint reads.

    Online2LiveStream
    In common with the original lawsuit, Triller is suing Online2LiveStream for copyright infringement, vicarious copyright infringement, violations of the Federal Communications Act, conversion, and violation of the Computer Fraud and Abuse Act. Interestingly, this suit also adds a claim of false advertising after Online2LiveStream recently changed its business model.

    Visitors to the site who want to watch boxing are now presented with a splash screen suggesting they can watch the Paul vs. Askren fight but like many sites that attempt to cash in while cashing out, this now leads to nowhere good. Indeed, the site now links to a scam site that is happy to take people’s credit card details but doesn’t offer what it claims to provide.

    “Defendants misleading the public as to the lawful way to obtain Plaintiff’s service has injured Plaintiff,” Triller writes.

    Second Triller Lawsuit Targets YouTuber ItsLilBrandon
    In a second lawsuit filed in the same US court, Triller targets Brandon T. Williams, the person who allegedly operates online using the ItsLilBrandon “business entity”, plus Does 1 to 10.

    In what appears to be an effort to cover all bases, Triller alleges that the defendants are not only the operators of the ItsLilBrandon YouTube channel but also the owners and operators of various torrent and streaming websites. Triller doesn’t name any of them but says that the defendants solicited payments in exchange for uploading the Jake Paul event to YouTube.

    “[D]efendants, and each of them, solicited payments in exchange for their unlawful uploading, distribution, and public display of the Broadcast to users of the YouTube Channel by, among other things, asking users to ‘please help me out’ and providing information for an account with Cash App, a mobile payment processing service,” the complaint notes.

    In common with the suit against Online2LiveStream, Triller describes the ItsLilBrandon ‘branding’ as a shell to avoid liability. The company claims that this “business entity” was operated without annual meetings, without keeping records or minutes of any proceedings, or maintaining written resolutions.

    Triller is suing the ItsLilBrandon defendants for copyright infringement, vicarious copyright infringement, violations of the Federal Communications Act, conversion, and violation of the Computer Fraud and Abuse Act.

    Third Triller Lawsuit Targets My-Sports.club Defendants
    The final lawsuit in this batch targets several business entities and individuals with a focus on Canada – 8100462 Canada Inc. (doing business as MediaHub aka Performance Marketers), 8099316 Canada Inc., Diglo Inc., an individual named as Nicolas Klivokiotis, plus Does 1 to 10.

    According to Triller, the defendants are the owners and operators of various torrent and streaming websites including Sports-Today.club and My-Sports.club.

    “[O]n or about April 17, 2021, Defendants created and published on the Websites a post titled ‘ACCESS BOXING WITHOUT CABLE! YOUR SCREEN. YOUR TERMS’,” Triller writes.

    “The aforementioned post also contained a clickable link to permit users of the Websites to unlawfully view the Broadcast. Defendants did not have authorization to upload, distribute, or publicly display the Broadcast to the users of the Websites.”

    Triller says this was a for-profit operation, with visitors directed to external and/or shareable payment links (including PayPal) to fund the defendants’ breaches of the company’s rights.

    my-sports-club-triller
    “[D]efendant Klivokiotis is an individual who serves as the Director, President, Secretary, and Treasurer of Defendant MediaHub and the Director of Defendant 8099316, and served as the Director of Defendant Diglo,” Triller claims.

    “Upon information and belief, Defendant Klivokiotis owns, operates, or otherwise controls the Websites for the purpose of permitting, encouraging, facilitating, and inducing the sharing of videos and live programing of audiovisual materials between users of the Websites.”

    Similar allegations to those made against Online2LiveStream and ItsLilBrandon suggest that the companies named in the suit acted as “shells” to shield Klivokiotis from liability. Most other claims are broadly the same as those made in the other two lawsuits, demanding relief for copyright infringement, vicarious copyright infringement, violations of the Federal Communications Act, conversion, and violation of the Computer Fraud and Abuse Act.

    Claims For Relief (All Lawsuits)
    Triller is demanding an injunction to prevent ongoing infringement, plus an order awarding it all of the profits made by the defendants and damages to cover its losses.

    The company also demands statutory damages of up to $110,000 for each violation of 47 U.S.C. § 605(a) and up to $60,000 for each violation of 47 U.S.C. § 553, plus attorney’s fees, interest and costs. Additional damages, including for two types of copyright infringement (which could be even more substantial) should be determined at trial.

    Finally, and on a less serious note, poor old Ben Askren simply can’t catch a break. In addition to being knocked out by Jake Paul, before the fight he was inexplicably announced as ‘Ben Askew’ by veteran ring announcer Michael Buffer, much to his disbelief and the amusement of Jake Paul.

    In Triller’s lawsuits, ‘Funky Ben’ is also referred to by the surnames ARKSEN and ARSKEN.

  3. #3
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    Jake Paul Fight Piracy: Judge Dismisses Triller’s Lawsuit Against YouTuber
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    After filing a wave of lawsuits against entities alleged to have streamed the Jake Paul vs Ben Askren fight without permission, Triller has clocked up another failure in a US court. A lawsuit filed against YouTuber 'ItsLilBrandon' has been thrown out by a judge after Triller failed to follow the court's orders.Ever since the Jake Paul vs. Ben Askren fight was streamed illegally online, Triller has been filing copyright infringement lawsuits against the alleged culprits.The campaign began with a $100m complaint against multiple “business entities” but a judge dismissed all but one of the parties from the action, warning that by joining all of them as cooperating parties, the illegal conduct of one defendant could be wrongly attributed to another independent defendant.In response, Triller began filing separate actions against each entity. One of those suits targeted YouTuber ‘ItsLilBrandon’, later identified as Brandon T. Williams.

    Allegations Against Williams
    Triller’s complaint alleged that Williams is the operator of the ‘ItsLilBrandon’ YouTube channel, which seemed a reasonable conclusion to draw, adding that Williams publicly displayed the Jake Paul fight and asked followers to “help out” by donating to mobile payment processing service Cash App.However, without any supporting evidence, the company also went on to claim that Williams owns and operates a number of torrent and streaming websites and accused Williams of utilizing the ‘ItsLilBrandon’ branding as a shell to avoid liability to Triller.Following up on these somewhat grand allegations, Triller accused Williams of copyright infringement, vicarious copyright infringement, violations of the Federal Communications Act, conversion, and violation of the Computer Fraud and Abuse Act.

    Williams Was Served, Triller Seeks Default Judgment
    The case docket reveals that 19-year-old Williams was served with the summons and complaint during the morning of June 7. Triller’s representative couldn’t locate the defendant at the expected address but Williams later accepted service at an address in Dauphin County, Pennsylvania.On July 1, Triller applied for entry of a clerk’s default against Williams, stating that Williams had failed to answer or otherwise respond to the complaint within 21 days of being served. A day later, the clerk entered default against Brandon Williams and ItsLilBrandon, ordering Triller to file a motion for default judgment no later than July 20, 2021.United States District Judge Fernando M. Olguin informed Triller on July 6 that its motion should include detailed information, such as the damages and injunctive relief sought, and any claim for attorney’s fees. One of the basic requirements was that any claim for damages must be “supported by detailed, clear, and thorough calculations” that cite the “underlying admissible evidence, such as contracts, spreadsheets, and declarations.”The Judge warned that failing to file for a motion for default containing the information detailed in his order could result in the motion being denied. It could even see the case against the defendant being dismissed for failure to prosecute and/or failing to comply with a court order.

    Triller Fails To Comply With The Judge’s Instructions
    In minutes dated July 26, Judge Olguin notes that Triller had been ordered to serve a motion for default judgment no later than July 20 and had been warned that failure could result in the action against Brandon Williams and ItsLilBrandon being dismissed.Triller failed to comply with that order.Noting that dismissal is a severe penalty and an extreme remedy, the Judge adds that relevant factors have to be weighed before dismissal including the public’s interest in expeditious resolution of litigation, the court’s need to manage its docket, and the risk of prejudice to defendants and respondents.“Plaintiff’s failure to file the motion for default judgment hinders the court’s ability to move this case toward disposition and indicates that plaintiff does not intend to litigate this action,” Judge Olguin writes.“Thus, having considered the Pagtalunan factors, the court is persuaded that the instant action should be dismissed for failure to comply with a court order and failure to prosecute.”The case was dismissed without prejudice, meaning that a new complaint can be filed at a later date. However, in light of the Judge’s demands that a detailed damages claim is required (no evidence supporting such a claim has been presented to the court), it’s open to question whether Triller is genuinely interested in pursuing this matter any further.

  4. #4
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    Jake Paul Fight Piracy: Judge Dismisses Triller’s Main Lawsuit, Others On The Brink

    A court in the United States has dismissed Triller's original lawsuit that targeted a site alleged to have pirated the Jake Paul vs Ben Askren fight. In another lawsuit, Triller failed to inform a court that an investigation was underway and faces a case dismissal. In another, Triller faces dismissal due to lack of prosecution.Triller’s campaign to haul alleged Jake Paul vs. Ben Askren fight pirates into US courts hasn’t been straightforward.After filing one big lawsuit, that was later reduced to just one defendant by a judge, Triller began filing individual complaints against some of the original defendants. Thus far, that venture hasn’t gone particularly well.Last month in a California court, District Judge Fernando M. Olguin dismissed Triller’s lawsuit against YouTuber ‘ItsLilBrandon’ after failing to file for a default judgment supported by “detailed, clear, and thorough calculations” indicating the scale of the damages sought.And now there are serious complications in other cases.

    Judge Dismisses Case Against FilmDaily
    The original lawsuit that kicked off Triller’s legal campaign now has just FilmDaily.com named as the sole defendant. This is interesting in itself since FilmDaily.com is not the domain Triller is complaining about – FilmDaily.co is.On July 30, Triller was again warned that the case against the site could be dismissed for lack of prosecution but Triller quickly responded with an appeal to the court not to dismiss the case.According to Triller, it has been conducting an investigation into FilmDaily but had failed to inform the court about that, a decision it now regrets. However, that investigation was apparently fruitful, with Triller able to identify the “true identity” of those behind the site.What is curious about Triller’s recent response about FilmDaily is that it alleges (but does not show) that FilmDaily.co – which appears in most respects to be some kind of news portal – actually streamed the fight illegally.“On April 17, 2021, Defendant created and published a post titled ‘Jake Paul vs Ben Askren ‘Reddit’ Live! Free Stream, How to Watch?,’ providing a clickable link titled ‘Click To Watch Paul vs Askren Live Stream Free.’ A true and correct copy of the aforementioned post is attached hereto as Exhibit D,” it reads.
    Hidden Content
    As the image of that exhibit shows, that text is indeed present. However, there’s no evidence to show that the supposedly clickable link actually did anything or was tested, there are no screenshots of a fight being shown, and there is no explanation of why the same page advises people to visit Triller Fight Club and pay $49.99 to watch the event.

    Triller Filmdaily Exhibit
    This is interesting in light of an earlier lawsuit filed by Triller against a site called AccessTVPro. This platform bears all the hallmarks of a scam site that seems unlikely to have offered the fight since it appears to be a scammy bait-and-switch-type operation. Sites like these claim to have content, lure people in, then try to extract payment for stuff they don’t have.Triller recently told the court that it’s preparing a second amended complaint but none of that matters now. Triller was supposed to serve the defendant within 90 days of the filing of its complaint but failed to do so.“[P]laintiff’s Response, does not establish when it obtained information about the true identity of Defendant or why it did not seek an extension of time or otherwise attempt to prosecute this action. Plaintiff therefore does not establish good cause for the delay in timely serving Defendant,” the court’s order reads.
    “Plaintiff’s claim against Defendant is therefore dismissed under Rule 4(m) without prejudice as a result of Plaintiff’s failure to timely serve Defendant or establish good cause for that failure.”

    Man Sued For Saying He Watched Fight, Triller “Failed to Litigate Case”
    On June 11, Triller filed a lawsuit in an Ohio court against an individual named Jerren Swords. According to the complaint, the Ohio resident made the mistake of taunting Triller co-owner Ryan Kavanaugh on Instagram, declaring that he’d “watched the Jake Paul fight for free” and there was nothing Kavanaugh could do about it.As it turned out, Triller was more than happy to step up with a lawsuit claiming that Swords had breached the Copyright Act and the Federal Communications Act while demanding at least $150,000 in damages.Triller followed up by executing a summons on Swords on June 16 and his answer to the complaint was due July 7. Thus far, Swords has failed to respond to the court and according to the judge, that could be enough for Triller to obtain a default judgment. However, Triller appears to have issues with its own legal filings.“[P]laintiff has failed to make any effort to litigate this case since filing its Complaint. Thus, dismissal for lack of prosecution may also be warranted,” Judge Michael R. Barrett warns in his order dated August 5, 2021 (here, pdf)Triller responded to this order in a filing dated August 11, noting that it had served Swords on June 14 and on June 28, a man claiming to be Swords’ father contacted counsel for Triller to discuss the complaint. Triller then wrote to Jerren Swords asking if he intended to retain counsel and whether he consented to Triller discussing the matter with his father.Since then there has been no further communication so Triller is now seeking an entry of default judgment. As a result, Triller is asking the court not to dismiss the case.

    Lawsuit Against Eclipt Gaming / Matthew Space
    On June 3, 2021, Triller sued another YouTuber – Matthew Space – the alleged operator of the Eclipt Gaming channel. With just 2,250 subscribers at the time, the channel has specialized in GTA Online videos, with most getting just a few hundred views. According to Triller, Space posted the Jake Paul fight to his channel and it was watched 297 times.Despite the relatively small scale, Triller described Space’s conduct as “calculated and reprehensible infringement”, claiming that Space had somehow “intercepted, received and/or descrambled” their satellite signals and is therefore liable for tens of millions of dollars in damages.On August 3, Judge Robert Gary Klausner wrote in an order to show cause (pdf) that the action against Space could be dismissed for lack of prosecution. In a filing dated August 9, Triller said that it had served Space on June 8 so he was required to respond to the court before July 9. However, Space had issues with his attorney and needed to find a new one in the right district, so Triller offered an extension until August 23.With that in mind, Triller is now asking the court not to dismiss the action

  5. #5
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    Triller: H3 Podcast Can’t “Steal” Jake Paul Fight Video & Claim Fair Use

    After Triller sued the popular H3 Podcast for $50m claiming that the people behind it had pirated the Jake Paul vs. Ben Askren fight on YouTube, the defendants sought to dismiss the "fatally flawed" complaint. Now Triller is shifting its approach, claiming that it's not suing over a commentary video but the underlying 'stolen' fight hosted on YouTube. As such, fair use defenses fail.

    In May, Triller filed a lawsuit against the H3 Podcast, claiming that by showing a portion of the Jake Paul vs. Ben Askren fight event on YouTube, the defendants breached the company’s rights.

    Triller initially alleged two types of copyright infringement, violations of the Federal Communications Act (FCA), conversion, and violations of the Computer Fraud and Abuse Act. The company demanded $50m in damages after the “unauthorized broadcast” was allegedly viewed one million times. A first amended complaint named Ethan and Hila Klein as defendants and a second removed the fraud allegations.

    Early September the defendants fired back with a motion to dismiss the “fatally defective” complaint, arguing that they only used a very small portion of the four-hour broadcast for the purposes of commentary and criticism, a key component of a fair use defense. Triller’s allegation, that Ethan Klein admitted that the copy of the fight he watched was pirated, does not amount to anything since viewing such content is not an offense, the defendants argued.

    Considering these points and others formed along similar lines, Triller’s lawsuit should be dismissed, the defendants said. In an opposition to that motion, filed late Wednesday, Triller argues otherwise, shifting emphasis away from the podcast itself and onto the video clip used by H3, which was placed on YouTube as an ‘unlisted’ video.

    ‘Unlisted’ Video Was a “Bootlegged” Copy
    In its opposition, Triller moves directly to the core of its new focus. The company says that Ethan Klein admitted online that he pirated the Jake Paul fight and uploaded “substantial portions” of that broadcast to YouTube in the form of an unlisted video. Third parties were allegedly able to view that video without paying Triller PPV fees.

    “These are textbook violations of the Copyright Act, and Defendants should not be permitted to thumb their noses at the law or this Court,” Triller writes.

    Triller’s initial stance was that the H3 Podcast episode that contained the fight clip was viewed a million times but they now state that the episode, which contained commentary and criticism, is not what this lawsuit is about.

    “This lawsuit does not concern or seek to stifle Defendants’ commentary relating to the Broadcast. To the contrary, this lawsuit concerns Defendants’ creation and dissemination of the Unlisted Video,” its motion reads.

    URL of Unlisted Video Was Displayed In Podcast
    According to Triller, the “stolen” clip used in the H3 episode contained a piece of information that undermines the defendants’ case. By displaying the fight clip and its URL (location on YouTube), a breaches of copyright law took place.

    “To the extent Defendants wanted to provide commentary concerning the Broadcast, Defendants could —and should— have done so without violating the Copyright Act by hiding, obstructing, or obscuring the URL for the Unlisted Video,” Triller’s opposition to the motion to dismiss reads.

    “But, whether out of negligence, willfulness, or maliciousness, or some combination thereof, Defendants chose to not hide, obstruct, or obscure the URL for the Unlisted Video, and thereby unlawfully permitted at least 65 individuals to view the essential portions of the Broadcast without paying Plaintiff the required pay-per-view fee.”

    Triller says that because each of these 65 individuals failed to pay Triller and the unlisted video was monetized, the defendants’ profited from their direct infringements. On the other hand, Triller notes that the defendants may not have earned anything at all (as the defendants have previously claimed) but want the opportunity to ascertain the facts during a discovery process.

    Process of Viewing Pirated Broadcast “Was Illegal”
    In respect of the defendants’ claim that simply viewing the event from a pirated copy wasn’t illegal, Triller suggests the whole process that facilitated that needs to be examined. The company says that the defendants not only viewed the broadcast without paying but also downloaded the broadcast and uploaded it to YouTube, where it was viewed by third parties.

    “By unlawfully viewing and downloading the Broadcast, Defendants engaged in direct copyright infringement. By uploading the Broadcast to YouTube where other individuals could —and did— unlawfully view the Broadcast, Defendants engaged in vicarious copyright infringement,” Triller adds.

    The company also addresses the defendants’ claim that the unlisted video was a “digital stream” and therefore inherently “transitory”, stating that the file was “fixed” on YouTube’s servers.

    Defendants’ “Bad Faith” Rules Out Fair Use Protections
    In their motion to dismiss, the Kleins stated that under the doctrine of “intermediate use” the preliminary step of copying a video for use in the creation of a fair use work also qualifies as fair use. However, Triller believes the way that video was obtained weighs in its favor.

    “Defendants did not obtain the Broadcast lawfully; indeed, Defendants expressly proclaimed to the world that they stole the Broadcast,” Triller notes.

    In respect of H3’s commentary and criticism podcast, Triller says the same effect could’ve been achieved without showing the broadcast at all, or by lawfully purchasing the broadcast like any other consumer.

    “But Defendants did not do this. Instead, Defendants admittedly ‘pirated’ or ‘bootlegged’ the Broadcast, uploaded a copy to YouTube so others could —and did— similarly unlawfully pirate or bootleg the Broadcast, and profited therefrom.”

    Further weighing in on the “intermediate use” defense, Triller says that case law only allows infringements that are “not ultimately used in any end product” and in this case, the H3 Podcast episode indisputably contains copyrighted material.

    “Accordingly, the intermediate use doctrine does not apply to the Unlisted Video as a matter of law,” Triller adds.

    Other Fair Use Factors Cannot Be Relied Upon
    Again focusing on the ‘Unlisted Video’ rather than the H3 Podcast episode, Triller says that there was no comment or criticism in it. It was a “substantial portion” of the broadcast, in its original form, and was in no way transformative.

    That source video was viewed at least 65 times without comment or critique and since those viewers were able to watch the Jake Paul fight in full, the video was a market substitute for the broadcast. This meant there was a substantial effect on and the market and value of the copyrighted work.

    Finally, in the event that the court decides to dismiss any of Triller’s causes of action, the company requests permission to amend its complaint once again.

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