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

Ich bin Hitler

[Looce]

und ich bin erste!

(first post, thread is now godwinned)

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/

Re:Ich bin Hitler

[jez9999]

Apparently all of those videos on that page have been pulled. Including the pure white noise one. I wonder how they justify that one.

Germany considers it too racist. There should have been a representative mix of white and black noise.

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

[larry bagina]

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

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

[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

[mcvos]

I read an interview with the director of Der Untergang where he said that he liked all those Untergang parodies. Not every filmmaker has his pivotal scene become such a big internet meme, and he was very flattered by that, and tried to watch every one of them.

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

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.

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.

Uh-oh!!

[Pike]

Wait till Hitler finds out about this!!! woooooohhh boy!!

Re:Uh-oh!!

[nine-times]

Yeah, he's pretty pissed.

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.

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

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!

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

[je ne sais quoi]

I wouldn't worry about this. Youtube very happily takes down whatever, but just go back in a few weeks and it's up again. Just off the top of my head, here's a clip about Ron Paul that Fox had taken down, there are a multitude of Simpson's clips up there now and for a long time when youtube first started those were all being taken down, and IIRC at one point musicians or the RIAA were forcing people to take down homemade music videos that people had posted. Eventually whoever is issuing the notices will get tired and give up. Sure you can try to do this, but it's a lot like trying to keep the tide from washing your sand castle away, it's a hopeless battle.

By the way, I saw this movie in the theater for a foreign film festival. It made it all the more funny to see the viral videos start popping up since I remembered the scene vividly and it's a pretty powerful movie. Although, I saw it with a German girl and her comment was that Hitler movies were passe in germany since so many had been made. I thought it was good though.

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

[Joeseph64]

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

Well... The article also ends with the director saying "If only I got royalties for it, then I'd be even happier." But removing the videos from youtube wouldn't help him with getting royalties, so yeah. It is rather stupid. He'll probably get less money now since the videos were essentially free advertising for the movie.

Re:Downfall is a really good movie

[VTI9600]

Yeah! I never would have heard about the movie and subsequently downloaded it from The Pirate Bay if not for the Youtube parodies too!

Re:JUST LIKE THE NAZIS!

[DurendalMac]

First they came for the Youtube videos, but I didn't speak up because I don't have any Youtube videos...

sounds like a bad business decision

[ffflala]

Sure, hardly anyone posting a youtube vid will be interested in licensing the scene. It's short sighted to consider only that aspect, and think of it as lost revenue. This meme is a big one. If properly nurtured, it could ensure future rental revenue in the way that only cult movie status can.

I also only --and legally-- rented the movie after watching the Xbox Live parody. The movie was a large international success upon its release, but it didn't make my radar. The parodies are can be so funny because the banality of the fake subtitles is so incongruent to the remarkably powerful acting.

My thought process went from "this is hilarious" to "wow what a great scene... I need to watch this movie".

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).

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.

Re:Der Untergang

[Trapezium Artist]

It is indeed a fantastic film, highly recommended.

Being married to a German, having lived in Berlin for seven years, and with both my kids having been born there, I have long felt that it's absolutely incumbent upon me to really try and understand what happened in 1930s and 1940s Germany, rather than continuing to hide behind the simplistic "we won, you lost, you killed lots of Jews, Germans are bad" attitude that was drummed into most of us growing up in the UK in the 1960s and 1970s.

That's not to condone or forgive anything at all, but it's important that we understand why a deeply civilised nation went so catastrophically off the rails in the first half of the twentieth century, if only to look inwards and ask ourselves, each and every one of us, what would it take for me to go down a similar road. Only then, I believe, can you try and avoid it. Again, it's too trivial to say "never" without thinking about it: we're all human and all capable of extreme actions in extreme circumstances, I believe.

In that regard, Der Untergang is a truly crucial addition to the literature (be it written or visual) on this very important topic.

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: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.

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:Downfall is a really good movie

[metacell]

I watched different scenes on Youtube.

Pretty strange movie, though. The actors do the same things over and over, and only the subtitling is different?!