EFF Assails YouTube For Removing "Downfall" Parodies

Locke2005 writes "In what promises to be one of the quickest threads to become Godwin'ed, YouTube has pulled scores of parodies of the 'Hitler Finds Out' scene from the movie The Downfall. Ironically, I had never heard of this movie before this — and now I want to watch it." Here is the EFF complaint. David Weinberger has posted some details on Google's Content Identification tool, which is being used in the shotgun takedowns.

Comments

BBC already wrote good article on this

[Speare]

The BBC article on "The Downfall" viral video craze.

A good summary of the whole story of the meme before the YouTube action.

Re:BBC already wrote good article on this

[adbge]

No. A meme is not a fashion or a fad. Fad is the proper term.

The term Internet meme, pronounced meem, is used to describe a concept that spreads quickly via the Internet.[1] The term is a reference to the concept of memes, although this concept refers to a much broader category of cultural information.

http://en.wikipedia.org/wiki/Internet_meme

Re:BBC already wrote good article on this

[Fast Thick Pants]

It's more What's Up, Tiger Lily? than MST3K.

Re:Ich bin Hitler

[poetmatt]

it's easy to get around the content filter really.

how do people not bother? Just change the audio pitch by...I think it's 1 half step? Or 1.1 half steps? Once you do that, the automated scanner will not be able to find your video at all. It will sound practically identical, as well.

Just shows how pitiful the attempts by copyright groups are, since they don't even review the videos.

For video that relies on the graphic, you just have to create a single vertical line (maybe green or something, 1 pixel wide) going down the entire frame of the video, and then the graphic filter won't find it either.

Just shows ya, the more you try to stifle, less it works.

Re:Ich bin Hitler

[poetmatt]

ahh, here it is. The how-to.

http://www.csh.rit.edu/~parallax/

Well what does the director have to say about it?

[yamamushi]

This is rather stupid, considering the director of Downfall watches them and likes them. In fact, in his own words "I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I'm laughing about the scene that I staged myself! You couldn't get a better compliment as a director." http://nymag.com/daily/entertainment/2010/01/the_director_of_downfall_on_al.html

Mine's still up

[Anonymous Coward]

I received a "Notice of potential infringement" from YouTube very soon after posting this one a week ago. The video, which had initially been accessible, was pulled from the site.

There was an option to appeal the takedown notice, and I filled it out, providing as a reason "Parody is a recognized fair use under US copyright law." I'm actually not sure if you can play the fair-use card when using the content owner's IP to mock an unrelated subject, but in any event, the appeal seemed to be accepted by YouTube, because access to the video was restored within a few hours.

So, for what it's worth, if your video gets pulled by Youtube, try filling out the appeal form.

Re:Mine's still up

[cpt kangarooski]

So it sounds as though you're going to want to read over 17 USC 512(g), which covers this sort of thing.

Long story short, the idea is that if material is taken down due to a DMCA notification, which service providers (including YouTube, given how that term is defined in the law) obey in order to be protected from lawsuits regarding things other people do with their service, it can be put back up in a way that continues to protect the service provider. But the two opposing parties are made aware of each other so that they can hash the issue out in court, possibly with the court ordering that the material be taken down again.

Here's the relevant subsection:

(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.--

(1) No liability for taking down generally.-- Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception.--
Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider--

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

(3) Contents of counter notification.--
To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

(4) Limitation on other liability.--
A service provider's compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C).

Re:Unfortunate

[larry bagina]

The videos are using one scene, not the entirety. And people watch the videos *for* the subtitles.

Der Untergang

[cosm]

To anybody that hasn't seen this movie, it is a great artistic portrayal of Der Fuhrer in his final days, and provides insightful dialog regarding the mentality of the Reich's higher ups during the final days. It is an extremely dark and gritty movie, but the angle it presents is something alot of American history books and entertainment tend to neglect.

I saw the original movie, Der Untergang, which is its original German name, in my German Studies class in high-school, and recommend it to anybody interested in more than just Godwin's Law. Watch it. Must See.

EFF's own parody video...

[adbge]

The EFF has a parody video up about this type of thing happening. It seems to have been posted before Youtube started pulling them down, so it's almost prophetic.

The clip:
http://www.youtube.com/watch?v=PzUoWkbNLe8&feature=player_embedded

Re:Unfortunate

[fyrewulff]

He only does that because he's a nice guy though. Legally he could put any of his parodies on his CDs if he wanted to.

Re:Unfortunate

[cpt kangarooski]

making a parody where the subtitles are the only original content and everything else is from the copyrighted work is not gonna fly in court.

It doesn't matter, for the purpose of determining fair use, how much additional material was added. Rather, it depends on how much of the underlying work was used, and how important that portion was to the underlying work. Your criterion is often invoked by infringers who legitimately claim that because they added so much to the portion used, their use was fair, and is just as often rejected by the courts, who don't care about that.

In any event, this isn't "the entirety of the video from 'The Downfall.'" The Hitler scene is just one part -- albeit a rather powerful part -- of an entire movie about the last days of the Nazis in Berlin during the war.

Of course, the thing that might trip them up is the ridiculous dividing line that the courts have been drawing between parody and satire. When a use is a parody, it makes fun of the underlying work itself, and therefore must draw at least somewhat from that underlying work, in order to come about. It is essentially commentary that ridicules the work, or is at least itself ridiculous. Imagine, for example, making fun of Mickey Mouse and Disney by having the Sorcerer's Apprentice scene from Fantasia involve Mickey summoning up a destructive horde of copyright attorneys. (We are indeed capable of reproducing by fragmentation; fear us) That could be a parody.

Satires, however, are making a point about society generally, or at least about something other than the underlying work. In that case, it doesn't absolutely need to borrow from an underlying work, and the courts have not been as generous to satire as they have been to parody. For example, there was a case in which someone was making fun of the OJ Simpson trial by using Dr. Seuss characters and artwork. Because the use wasn't commenting on the used material, but just borrowing it for an unrelated purpose (unless OJ was right, and the murderer was the Lorax or something), it wound up not being a fair use.

Now, I think this is a dumb distinction. The main issue should be whether the use is transformative, even if it doesn't 'need' to use the underlying work (although a showing of necessity should count for something, considering other doctrines, such as merger, where it is also relevant), along with the rest of the fair use analysis, in particular, the fourth factor (harm to the market for the underlying work). But that's what we're stuck with at the moment. And since most of the Downfall videos (though not all -- the one where Hitler is upset about how many Downfall videos there are would seem to be okay, ironically) don't make fun of anything that requires the use of Downfall in order to do it, things may not go well.

Now, how long until someone follows up on this, does a bit of research, and has Hitler upset about this particular aspect of Fair Use under US copyright law, citing the statute and caselaw? Perhaps Generals Keitel, Jodl, Krebs, and Burgdorf (the four guys that he has stay in the room) could each stand for one of the four prongs of the analysis?

Re:Unfortunate

[fyrewulff]

No, the reason he asks permission is to be (a) a nice guy, and(b) being a nice guy gives makes the musicians more open to letting him do stuff like use their actual music video sets for the parodies and other cool things.