The Fine Brothers' reaction video controversy, explained

Watching the downfall of the YouTube celebrity duo known as the Fine Brothers has been kind of like watching someone get devoured by a crocodile — someone who's kind of a jerk, whom you don't like very much, and who jumped into the crocodile-infested river of his own volition.

If there is a blueprint for how to get people on the internet to hate you, Rafi and Benny Fine wrote it. Earlier this week, the brothers attempted to trademark and monetize their brand of online reaction videos (more on these in a bit) and, somehow, completely underestimated how people would react.

Citizen brigades bent on stopping the brothers sprang up on Reddit. Memes making fun of their physical appearance began circulating. People made reaction videos spoofing the Fines, and the brothers' YouTube follower count hemorrhaged.

The Fine Brothers had become the internet's greatest villains. And within a week, they nixed any plans of a trademark and apologized for their actions.

What's sort of strange is that for internet celebrities, the Fine Brothers didn't realize how awful they were coming across. Nor did they understand that this marketing plan wasn't really about reaction videos, but rather about their gross misunderstanding of how the internet works.

The Fine Brothers tried to trademark their "React" videos

The Fine Brothers, like a lot of online success stories, weren't household names before this controversy erupted. They probably still aren't. But on YouTube they're known as Fine Brothers Entertainment, and a lot of the comedic videos and sketches posted to their channel garner between half a million and 3 million views.

By far, their most-watched videos are reaction videos, where they film a variety of people (olds, youngs, teens, adults) reacting (with laughter, sadness, befuddlement) to things (food, TV shows, music, celebrities).

To date, Fine Brothers Entertainment has amassed more than a billion hits on YouTube. And because of their success with reaction videos and the millions of hits each one has generated, Fine Brothers Entertainment filed for a trademark on "react" on July 10, 2015. According to the filing, the trademark would cover an "on-going series of programs and webisodes via the Internet in the field of observing and interviewing various groups of people."

This trademark was announced, along with the brothers' plans of a branding system called "React World," in a smarmy video (which has since been deleted) where Rafi and Benny explained that the trademark was ultimately a great thing, because people who wanted to make their own "React" videos could obtain a license from them.

What the Fine Brothers didn't really say was that this could have potentially been a slimy monetary scheme. They could have, with the help of licenses, crowdsourced (hundreds? thousands?) more videos and cashed in on those videos' revenue. There's also the fact that they were filing takedown claims on videos they felt were similar.

Anyone who wasn't Rafi or Benny could see that the trademark would be a great thing for Rafi and Benny, but not for anyone else who wanted to make "reaction-style" videos of their own.

The outcry followed quickly. And on Monday, the Fine Brothers wrote an apology explaining that they'd rescinded their application for a trademark.

What the trademark would have allowed

I spoke to a member of Vox Media's legal team who looked over the legalese in the Fine Brothers' trademark application. They explained that the trademark, had it been approved (again, the Fine Brothers have rescinded their attempt and apologized), wouldn't have prevented people from filming their own "reaction-style" videos, but would have had an impact on what people could name them.

Essentially: You can't claim the rights to a style of video, but you can potentially claim the rights to a series title (i.e., naming a video "Kids React"). That's why knockoffs of American Idol exist, and why Armageddon and Deep Impact don't negate each other.

The Fine Brothers wanted to trademark the broad title "React," which would allow them to go after competing content that infringed on that title.

But the main fear when the trademark news broke was that the Fine Brothers would be able to use it to effectively shut down other reaction videos — even though reaction videos are a YouTube "genre" that existed long before the Fine Brothers did.

The Fine Brothers didn't invent the reaction video. And that was part of the problem.

It's not exactly safe to assume the Fine Brothers would be completely altruistic in wielding a trademark and not go after YouTubers with similar videos.

In the past, the brothers have encouraged their fans to blast videos and talk show segments they've felt were similar to some of their videos. In 2014, the brothers publicly voiced this opinion in response to a segment from Ellen DeGeneres's daytime talk show in which little children "reacted" to technology:

If it is, a shame to not have @thellenshow reach out to us vs. just fully taking it as their own. This happens too often.

— thefinebros (@thefinebros) September 19, 2014

And if the Fine Brothers had really wanted to push the limits of their trademark, there are thousands of videos on YouTube they could potentially go after, even in situations that might seem totally ridiculous.

For example, here's a reaction video from 2012 where a father asks his kid about same-sex marriage:

And here is a Fine Brothers video from 2013 where kids are interviewed and "react" to a same-sex marriage proposal:

Aside from the obvious difference in production values, the "entertainment" factor of these two videos is the same. It's contingent on the kids saying cute, horrible, weird, precocious, and heartwarming stuff. Wouldn't it be egregious for the Fine Brothers to try to take down that first video?

For a minute, it seemed like that sort of thing was happening even without the trademark — fears were raised when it appeared that some reaction videos were reportedly being taken down:

But even though the Fine Brothers could potentially use the trademark to shut down reaction-style videos, there's another culprit here: YouTube's copyright infringement system.

YouTube's copyright and infringement policy would have made it easy for the Fine Brothers to target competing videos

YouTube, since its inception, has been a battleground for the concept of fair use. Over the past three years, the company has had to figure out where it stands, especially in light of copyright owners being more aggressive and abusing the Digital Millennium Copyright Act by filing more takedown notices.

"Unfortunately, an increasing number of copyright holders misuse this system to target even lawful fair use of their work," Wired wrote in 2014. "And the current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement — like fair use."

In the past year, YouTube has taken steps to curb aggressive copyright claims and cut down on unfair takedowns. Google announced in 2015 that it would pay to defend some YouTube videos in court. But the flagging system is still aggressive, and benefits the copyright holder.

If the Fine Brothers had a trademark, they could ostensibly use YouTube's flagging/copyright system to their advantage. They have already admitted to taking down similar reaction videos, but it's unclear what the brothers had submitted to YouTube.

"The concerns people have about React World are understandable, and that people see a link between that and our past video takedowns, but those were mistakes from an earlier time," the brothers wrote in their apology on Monday night. "It makes perfect sense for people to distrust our motives here, but we are confident that our actions will speak louder than these words moving forward."

The Fine Brothers went against the culture of the internet

To be clear, I don't understand the appeal of reaction videos. I don't find it all that alluring to watch people — especially corny, hammy children — watch or look at other stuff. Then again, I don't like eggplant, and lots of people enjoy it. But I think that one of the hairiest things about this controversy is that the Fine Brothers aren't really producing something mind-blowingly original.

It's not like Rafi and Benny are the ones who are saying hilarious things in their videos. Plus, the concept they're attempting to brand and trademark is completely unoriginal. Here is a group of bros who filmed themselves "reacting" to the NSFW (Google at your own risk) meme of Goatse and uploaded it eight years ago — three years before the Fines' first react video:

Youtube has without a doubt helped make people famous, even though some of those people have given us the video equivalents of tire fires. There are surely some people who feel that way about whatever the Fine Brothers are producing (me included). But behind these garbage videos is the understanding of the internet and the power of democratization.

As much we may dislike a YouTube video, its creator is allowed to put it up and shouldn't have that opportunity taken away if he or she has followed the rules (fair use, YouTube's standards, etc.). It's essentially live and let live, but with videos. The Fine Brothers were trying to game that system.

And that's why in the days following the Fine Brothers' trademark announcement, the internet responded as if it were a wounded animal. Video upon video was made mocking the siblings:

A plan to Google-bomb the brothers and have Nazi imagery associated with their searches made the front page of Reddit. An attorney said he would work on a case to block the trademark for free. Savage memes were created. And the Fine Brothers are bleeding subscribers; when I checked Tuesday night, they were losing followers at a rate of 64 per minute. Overall, they're down 400,000 since January 28:

There's also a live stream of watching Fine Brothers subscribers unsubscribe:

The backlash has brought the Fine Brothers to their knees, which is why they've rescinded their attempts to obtain various "React" trademarks.

"This has been a hard week," they wrote in a post on Medium. "Our plan is to keep making great content with the help of our amazing staff."

If you ask people on the internet, this is probably the best Fine Brothers reaction they've ever produced.

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