There have been a few developments since we last published an article on the fair use trial between YouTubers Carl Benjamin (better known as Sargon of Akkad) and Akilah Hughes. If you need a quick refresher in this case before reading on, please click this link to a previous blog entry.
According to Lior Leser of YouTuber Law, Sargon’s attorneys have requested a pre-motion conference before they file a motion to dismiss. Akilah’s attorneys also sent a letter to the court arguing why Sargon’s motion to dismiss should be denied.
Leser explains that Sargon’s attorneys filed for this pre-motion conference because they were following the rules set up by the court. In this particular court, pre-motion conferences are necessary before all motions are formally declared.
Sargon’s letter focuses on three key issues: subject matter jurisdiction, personal jurisdiction, and fair use. Although the arguments for these issues aren’t fleshed out in the letters now available, we can get a sense of how this case will play out in the future. Below, we’ll explore these three issues in greater detail.
Subject Matter Jurisdiction
For subject matter jurisdiction, Sargon’s letter argues that a New York court cannot deal with this case because the alleged copyright infringement happened outside of the USA. Just so you know, Sargon lives in the UK and Akilah lives in New York.
Interestingly, Akilah’s letter openly acknowledges that a US court lacks “subject matter jurisdiction over infringement occurring abroad.” After admitting this fact, however, Akilah’s lawyers go on to say that US courts can assert their authority in copyright infringement cases if one act of infringement, or an act that furthered infringement, took place in the USA.
In Leser’s opinion, Sargon’s attorneys will argue that since Sargon works in the UK, he expected his video to go onto a UK-based server and couldn’t control how YouTube distributed his video around the world. For the counter-argument, Akilah’s lawyers will most likely allege that Sargon didn’t take enough precautions to restrict his video to a private non-US audience. Akilah’s attorneys will also probably argue that Sargon should have known that YouTube (an American company, after all) has servers all over the world.
Lack of Personal Jurisdiction
In Sargon’s letter’s second point, the attorneys ask what right a New York court has to try a citizen of the UK. According to the letter, the only time Sargon has ever had any contact with New York was on holiday. Sargon doesn’t work in New York, nor does he own any property or businesses in the state. Therefore, from this letter’s standpoint at least, this New York court doesn’t have jurisdiction over Sargon.
Akilah’s lawyers respond to this issue by showing how in previous copyright infringement cases in New York, so long as the copyright owner resides in New York, damages from infringement can be considered locally. The fact that Akilah lives in New York could be sufficient grounds for personal jurisdiction.
Failure To State A Claim
The last point in Sargon’s letter is that the video he used on his channel (which was originally produced by Hughes) falls under fair use policy. Sargon’s lawyers claim the video he published on YouTube was meant as political commentary and, therefore, meets the requirements for fair use.
Akilah’s lawyers first point out that for Sargon’s infringing work to be considered fair use, it needs to be comprehensible to the “reasonable observer” and cannot simply consider what the “artist might say.” This letter goes on to argue that since fair use is so complicated, it’s not appropriate for a motion to dismiss case and requires a trial for further study.
Akilah’s lawyers also claim that Sargon filed a “false counter-notice” after Akilah took down Sargon’s initial reproduction of Akilah’s video through the DMCA takedown notice. Sargon claimed fair use in this counter-notice, and Akilah’s attorneys allege he did this illegally.
To rebut this argument, Sargon’s attorneys point out that their client had to know some alleged falsehood prior to filing the counter-notice. His lawyers go on to argue that Sargon believed his video was fair use, so he wasn’t deliberately lying.
How To Keep Up To Date On This Case
To learn more about this case, be sure to check out YouTuber Law’s channel. Leser often puts together live streams where you can ask questions about the Sargon v. Akilah and many other cases in the news. Also, be sure to watch YouTuber Law’s latest video, “Sargon & Akhila Trade Legal Jabs over Sargon’s Motion to Dismiss Akilah’s Lawsuit. Is there a Winner,” for more detailed info on this motion to dismiss.
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