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

Hitler wouldn't dare run Spelljammer.

[Culture20]

I love those things. The Gencon Battletech one was the first one I ever saw.

Unfortunate

[Anonymous Coward]

Unfortunately, since "fair use" doesn't have a definition that allows a reasonable person to determine objectively "that is fair use" or "that isn't fair use" it means each instance is handled on a case by case basis and pretty much needs a judge to determine what is and is not fair use. Of course, the normal view is that "parody" is fair use. However, in a case like this - is the movie truly being parodied? It sucks that we don't have a solid litmus test for fair use that doesn't require litigation.

Re:Unfortunate

[DurendalMac]

I doubt it. Weird Al making a parody by basically having his band play the song and making new lyrics is just fine. However, directly using the entirety of the video from "The Downfall" is not going to be seen as fair use. Parody is protected, but that movie is also under copyright, and 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.

Re:Unfortunate

[pookemon]

It's pretty easy really. "Fair Use" - is where the author/creator/distributor/publisher is making shite loads of money.

Re:Unfortunate

[Jah-Wren Ryel]

However, directly using the entirety of the video from "The Downfall" is not going to be seen as fair use.

Nobody is using the entirety of the video. They are using a clip that's less than 4 minutes out of a 178 minute film.

Re:Unfortunate

[mabhatter654]

Weird Al is still part of the "system" and doesn't have anything to do with Fair Use... He's on a big label and can get rights to whatever he wants. Remember MOST performers on the radio DON'T write their songs, and the "company" often owns them anyway. The company can license to whoever they want..."NOW", Kidz Bop, etc. The "performer" has nothing to say because they signed over ownership. What company executive is going to pass up easy money if Weird Al wants to riff on a song!

Re:Unfortunate

[Anonymous Coward]

I'm sorry, but if you don't think the possibility of a lawsuit crossed his producers' minds, you are a certified moron. The root post is correct, that sort of parody is not black and white enough to make it a risk-free endeavor.

Re:Unfortunate

[haystor]

There is nothing stopping the people making the videos from creating those scenes themselves...except that they don't want to put forth the effort. The sole reason they take the video from somewhere else is to save themselves the effort of producing quality work. Copying it has nothing to do with parody or satire, it is about creating the video and voice for the video.

A more blurry line might be if they recreated the scene themselves using the text from the movie, but even that was written by someone (I don't believe it was captured in the minutes). Still, they would be using the work of someone else instead of doing work they could be doing themselves.

This is different from parody, exactly as you mention above. If they were making a parody of Downfall, they would need to have enough from Downfall that it would be recognizable. Their specific requirements for these videos is to have an infuriated Hitler railing on about something, this doesn't require Downfall at all.

That said, I'm curious how sales of the movie have gone since these videos started appearing. The scene is remarkably well done, and I've nearly purchased it myself but decided not to because of the family killing scene which I just couldn't watch.

Re:Unfortunate

[ciderVisor]

Weird Al recreates the backing track in his studio. The downfall parodies do not restage the scene with different actors.

That's one way a is different from b.

Re:Unfortunate

[nacturation]

Let's see:

a) Weird Al takes a portion of the audio track and overlays his own original audio and replaces the video portion with his own original re-performance.

b) Downfall videos take the entirety of the audio track and the entirety of the video track and simply overlays subtitles. Nothing at all is an original recording. They might as well show the original unaltered Downfall clip on one side and have a second video that plays beside it showing the subtitles.

A parody should mock the original work. The Downfall subtitle videos, while amusing, fall more into the camp of a derivative work as the subtitles do not poke fun at the original movie.

Re:Unfortunate

[Anonymous Coward]

Clearly he's not the one who calls these shot.

Well, think of the thousands of people who saw the original scene because of the parody, were drawn in by Bruno Ganz's amazing performance, and then went ahead and watched the full movie.

If I was the director, I'd be happy with the amazing viral marketing.

Re:Unfortunate

[tepples]

They are using a clip that's less than 4 minutes out of a 178 minute film.

True, but that doesn't necessarily make the 4 minutes free to use, especially for purposes other than making a comment on that particular film or its authors.

Re:Downfall is a really good movie

[Anonymous Coward]

The funny part is, I never would have heard about the movie(and subsequently bought a copy on DVD) if not for the Youtube parodies. Free advertising? Bah!

Ridiculous

[Anonymous Coward]

Some of these parodies should be in the Smithsonian.

Constantin Films, just like any other company run by idiots, certainly enjoys the free hosting of their movie trailers and whatever else they have to promote their stupid movies.

this is the what intellectual property means:

[circletimessquare]

the impoverishment of our culture

no story, no art, is ever original. it all borrows or reinvents or reinterprets something that came before. and if the thread of our cultural output is artificially taxed strained and stamped out for demands for cash, then all of us, all of our lives, are less rich for that

maybe content creators would understand that parodies like this downfall clip actually create interest in the original, and are really just a form of advertisement. instead, imagine all the culturally relevant art that we will never see and can never see the light of day because a greedy selfish system would rather lock art behind lock and key, where it earns no cash, rather than let it get out there and bloom, and create more art, and create more COMMERCE

art, music, movies, all creative output has the unique property of being richer when it is allowed to flow freely and freely intermingle. why do we have to lead less rich cultural lives only because some fucking trolls in the bank vault can't see that? that if there were no such thing as intellectual property, the ancillary streams they could tap in the free flow of cultural output would be richer sources of cash than their feeble and failed approaches to control what they cannot and will never be able to control?

Re:Well what does the director have to say about i

[Jah-Wren Ryel]

To continue with my point (I hit submit instead of preview) - I bet the reason the director can't get any royalties is because his contract with the studio doesn't mention youtube clips so the studio gets to keep any money generated all for themselves. That's the kind of bullshit that "hollywood accounting" is famous for.

Re:BBC already wrote good article on this

[mirix]

something posted in 5000 different iterations on the internet, with dream of humour = meme, no?

Re:Well what does the director have to say about i

[nine-times]

Well really it's stupid regardless of what the director has to say. I could imagine the director taking it all very seriously and being upset that people were making fun of his movie or making light of Hitler's actions. Still, forcing these clips to be taken down would be stupid.

These parodies aren't being done for profit. They're not competing with the movie. They're not taking away from the movie. Nobody is going to watch these clips and say, "Well I don't need to see this movie now." This isn't what copyright was created for.

The whole thing might even be covered under the first amendment as parody.

The horror of monopoly

[symbolset]

Here is a perfect example of why people hate Microsoft's market monopolies. They acquired a flight simulator company and slaughtered all of the competition with the product by being excellent in the field. For 25 years they made fantastic profits on it, raising an almost impassible barrier to entry for new companies. A thriving ecosystem for third party hardware and software products emerged, from contollers to cockpit simulators to full-blown moving rooms costing tens of thousands of dollars.

And one day, being the last one standing in the field - having created a product that is a fine evolution of consumer flight simulation, they give it up. Not because the product's not making money - it is. Not because there's no market for it - there is. But simply because there's noone left on the field to kill, so they're bored with it.

This should tell you something about the lifecycle of their products. There's not just a bottom end where they kill them off to cut their losses. There's also a top end where they kill them off for excessive success. We saw this with IE too, and a team was reconstituted there only because they were losing market share and control of the user experience of the Internet, which worked against their vertical goal of control of average user experience from server to desktop.

Let's talk about Shakespeare

[symbolset]

Imagine if you will that Wm. Shakespeare had to contend with modern copyright law. He's only one example - any remembered artist will do. How much of the works of "Bard of Avon" would be permitted under current law? Actually, almost none of it. A sonnet or two. And because his unsourced output was so small we would not know of him at all. England's national poet would have been silenced by copyright law as we know it. Almost all of the stories he retold as plays would now be lost forever because they were derived from bardic tales or previous plays that would have been protected by copyright. We grant him great respect now not because he invented these stories, but because he told them well .

Every play, each story, was derived or influenced - as was common in that day and should be common still - by the bardic tales passed down in oral tradition that today would be protected. It was in his wry telling of these tales, the wit that he added, that made them so durable that we know them still. If he had not retold them in his special way they would be lost to time. Today he would be Disney'd out of his art - as a great many grand geniuses are today being silenced by the tyranny of copyright monopolies.

Every creative person needs to understand and acknowledge the source of their creation, or at least that they've built upon one. And they need to submit to a future where others build upon their work. We call this evolution culture. Modern copyright law admits no such culture. Each of them needs to understand that modern copyright law dooms them to ignominy, as our current masters of culture need new sales to drive their market numbers and this works against literary immortality. It's a Devil's bargain.

And so, breeding a generation devoid of culture we reap what we sow. If kids can't adopt the culture of their parents because they're proscribed from experiencing what it was by copyright law, they will invent their own. These inventions will by necessity be primal. Primitive. Animalistic. That can be art, but it can't be durable art.

So, artists and inventors are actually harmed by the current state of law. They should oppose it as it prevents their art from going viral and being a part of our culture.

By preventing the natural course of social evolution through copyright law, we naturally regress to the primitive at an abhorrent rate. That's not the purpose of copyright enshrined in the US Constitution. The purpose of that clause was to "promote the progress of science and the useful arts."

Re:Let's talk about Shakespeare

[haystor]

Bullshit, Hollywood proves that a million rehashes of the same story can coexist.

And for everything he wrote, it was never a matter of what he wrote about, but how he wrote it.

Lastly, he would have probably given us even more good quotes about lawyers and maybe someone would have acted up one of them by now.

Monty Python did this right

[Bearhouse]

http://news.slashdot.org/article.pl?sid=08/11/19/201255

See plenty of their clips (legally & for free) here:

http://www.youtube.com/user/montypython?blend=1&ob=4

Since the director of the film apparently *likes* the parodies, why not organise a competition, with a YouTube channel for the winners?
Yipee, instant good karma for the movie industry, (for a change), instead of this Streisand effect boomerang.
All the parody clips will be back, or posted elsewhere, within minutes anyway....

Re:Well what does the director have to say about i

[Binestar]

The clip used is less than 4% of the total film. Well within fair use. Putting a joke subtitle under a similarly short IronMan clip is fair use as well.