Commentary content creators, or those that make videos reacting to others videos, drama, music, etc. are more prominent than ever on Youtube and Twitch.
To some the concept may sound strange (“can’t you just react to the video yourself?”) but to millions of others this type of content is a favorite. However, with the growing prominence of this so-called “react content”, an often flouted legal issue has been raised: fair use.
Fair use is a law that states copyrighted material can be used for purposes of critique, research, reporting, or education without consequence of legal action. This doctrine has been a contentious topic of debate and criticism on media platforms because of the constant circulation and usage of others’ content. Especially as the genre of commentary content grows, the line between fair use and outright theft has become a bit blurred.
Twitch streamers are not aiding this problem. Some streamers, especially the most popular ones like Hasan Piker, MoistCr1TiKaL, or xQc, sometimes stream more than 12 hours a day. Logistically, streaming for this long can become difficult when the streamer inevitably grows tired or runs out of things to say to their audience. But does this excuse playing other people’s videos on stream for hours with little to no commentary, or credit to the original creators?
xQc is no stranger to watching others' content for hours on end– sometimes saying barely anything at all: GameByte
Ethan Klein, host of the wildly popular H3 podcast on YouTube, came forward two weeks ago about what he considered to be unacceptable behavior in the commentary community. On his YouTube series Leftovers, he specifically called out xQc, the most followed person on Twitch, for being one of the most egregious offenders of fair use practices. Klein is, in fact, no stranger to issues of fair use. It was him who in 2017 fought a legal battle around issues of fair use on YouTube (which he eventually won), setting the precedent for a majority of the practices now followed by commentary creators. Therefore, being called out by Klein, specifically on these copyright issues, is quite damning.
Angry with the allegations made by Klein, xQc (real name Felix Lengyel) sent a direct message to Klein on Twitter challenging him to a debate. Klein was up for the challenge, having previously come on top of debates with people such as JustPearlyThings (who identifies as an anti-feminist), Oli London (a self proclaimed “trans-racial” turned right wing commentator), NXIVM cult member Mark Elliot, and several others.
Ethan Klein and his podcast crew: Euronews.com
The debate took place on the 7th of August, this year. It began cordially, with xQc calling in on Zoom and Klein in his podcast studio. When initially asked why he chose to react minimally to others’ videos, xQc expressed the fact that he “didn’t care”, and how he felt no remorse for content creators that felt like he was stealing their content.
Then, in contrast to his statement that he “didn’t care”, he angrily accused Klein of doing the same thing. In response, Klein showed a compilation of xQc’s reactions during a ten minute video. His actual reactions made up only 30 seconds of the video, and were, as Klein argued, not transformative under fair use laws.
This video was where the debate began to fall apart, as xQc started growing angrier and angrier at Klein’s accusations. To support his argument of no harm done, xQc shared that no creators had ever contacted him about his content, implying that he had no victims, at least none that cared about his alleged content stealing ways.
However, Klein informed xQc that he did have a victim. Klein reached out to a YouTube creator, Vince Vintage, who had had many of his videos played on stream by xQc. In a direct message, Vince Vintage said he liked when big streamers watched his content, except for xQc, who he claimed never credited his YouTube channel and wasn’t reacting to his videos in any meaningful way. xQc’s response was that Vince was clearly a “paid actor”.
Ethan provided other examples of those that felt their content had been stolen by xQc, and as the proof piled up, xQc became nearly incoherent: calling Klein bald and old, and accusing his wife’s brand, Teddy Fresh, as being 90% stolen designs. The debate had reached a point of personal insults instead of valid points, which was then topped off by xQc getting on the floor in his room and inching along like a worm.
This debate was a strange one indeed, as it was quickly made clear that Klein and his crew had prepared vastly more than xQc had. What could have been a productive conversation turned into a “no, you!” argument, where xQc failed on several occasions to take responsibility for his actions and instead accused Klein of doing the same things. However, although the debate fell apart, Klein made his status as a defender of fair use very clear.
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