This article was produced in collaboration with Court Watch, an independent outlet that unearths overlooked court records. Subscribe to them here.
Critics of YouTuber Ethan Klein are pushing back on subpoenas that would reveal their identities as part of an ongoing legal fight between Klein and his detractors. Klein is a popular content creator whose YouTube channel has more than 2 million subscribers. He’s also involved in a labyrinthine personal and legal beef with three other content creators and the moderators of a subreddit that criticises his work. Klein filed a legal motion to compel Discord and Reddit to reveal the identities of those moderators, a move their lawyers say would put them in harm’s way and stifle free speech on the internet forever.
Klein is most famous for his H3 Podcast and collaborations with Hasan Piker and Trisha Paytas which he produced through his company Ted Entertainment Inc. Following a public falling out with Piker, Klein released a longform video essay critiquing his former podcast partner. As often happens with long video essays about YouTube drama, other content creators filmed themselves watching Klein’s essay.
These are called “reaction” videos and they’re pretty common on YouTube. Klein sued three creators—Frogan, Kaceytron, and Denims—calling their specific reaction videos low effort copyright infringement. As part of the lawsuit, he also went after the moderation team of the r/h3snark subreddit—a board on Reddit that critiques Klein and had shared the Denims video as part of a thread about Klein’s Piker essay.
On July 31, a judge allowed Klein’s lawyers to file a subpoena with Reddit and Discord that would reveal the identities of the people running r/h3snark and an associated Discord server. On September 22, lawyers for the defendants filed a motion to quash the subpoenas.
“On its face, the Action is about copyright infringement,” the latest filing said. “At its heart, however, the Action is about stifling criticism and seeking retribution by unmasking individuals for perceived reputational harms TEI [Klein’s production company] attributes to [John Doe moderators] unrelated to TEI’s intellectual property rights.”
The defendants’ lawyers said the subpoena to unmask moderators should be quashed because Klein can’t prove his case of copyright infringement, but also because revealing such information could put the Does’ in harm’s way. “The balance of equities weighs in favor of Does’ anonymity and quashing TEI’s Subpoenas in their entirety,” the filing said.
As evidence of the danger faced by the Does, the court filing quoted Klein directly. “Listen, guys, at this point you [r/h3snark mods] are totally fucked,” Klein said on a podcast, according to the court filing. “There’s a subpoena that’s going to come. You can’t erase your data. We’re going to get your IP address and find your information.”
“If there’s any justice in the world [the h3snark mods] will lose everything that they care about and I will be the one who makes them lose those things […] through legal means. Through any legal means,” he said, according to the court filing.
The defendants' lawyers paint a grim picture of what might happen should Klein’s subpoenas succeed: they “fear potentially being attacked, or worse, killed, over moderating a subreddit,” the filing said. “These worries extend to all family and friends connected to Does. Does fear their professional lives being ruined, potential sexual violence, extortion, fans showing up to their home, and endless years of harassment due to Ethan’s prolific lies surrounding them. The target he has painted on the moderators would make it unsafe to live openly in any capacity. Some Does also have heightened risk of retaliatory harm due to their religious identities. If their real names are revealed, these Does—and their families—face a real risk of being doxed, stalked, or harassed, as has happened to others in similar situations. In this climate, unmasking Does would expose them to significant and unjustified danger.”
Personal safety wasn’t the only legal argument the moderator’s lawyers put forward. A key part of Klein’s claim is that the Does violated his copyright by hosting links on r/h3snark of other streamers reacting to his video “Content Nuke—Hasan Piker.” His legal case is built around going after content creators for making “low effort” content using his work, but also the anonymous people on Reddit who shared links of those videos.
“The next question is whether creating a discussion thread, which includes a link to a streamer’s channel, where the streamer reacts to a live broadcast while providing her own commentary and criticism, and users visiting the thread engage in their own debate about the live broadcast and reactions thereto, constitutes contributory infringement,” the filing said. “It does not.”
The lawyers also argued that a Reddit “megathread”—a common practice where the moderators of a subreddit create one single space on a board for people to talk about a specific top—are fair use, that the reaction videos were transformative and should be considered fair use, and that the reaction videos increased the public’s exposure to Klein’s video.
At the end of the filing, the lawyers returned again to the personal safety of the moderators. They argued that even if Klein’s claim of copyright infringement met the burden of proof, and the lawyers don’t believe it does, the balance of harms is in favor of the moderators. “The personal harms to Does by allowing unmasking, as well as the public harms to online speech and discourse generally, would be irreparable in the private sense and long-reaching in the public sense,” the filing said.
The anonymity of places like Reddit and Discord grant a layer of protection to people seeking to critique power. This case could set a dangerous precedent, the lawyers believe. “If the court allows TEI’s Subpoenas, it would enable TEI to impose a considerable price on Does’ use of the vehicle of anonymous speech—including public exposure, real risks of retaliation and actual harm, and the financial and other burdens of defending the Action,” the filing said.
The filing added: “Very few would-be commentators are prepared to bear costs of this magnitude. So, when word gets out that the price tag of criticizing Ethan is this high—that speech will disappear. But that is precisely what Ethan Klein wants.”
