By Frank James
Let's stipulate that it makes me more than a little uneasy on some level to laugh at anything to do with Adolf Hitler.
Humor and Hitler are about as antipodal as it gets. He was a hateful monster who visited misery and destruction on millions of people. His legacy is still a curse to the world.
With that as a given, I must admit to having laughed at some of the video parodies that have sprung up on the Internet whose clever faux subtitles have transformed a Hitler-rant scene by actor Bruno Ganz in the 2004 movie "Downfall" into a diatribe against any number of modern irritants, like Hitler learning that the University of Kansas had ruined his bracket by losing in the NCAA basketball tournament's second round. Or Hitler ranting about the Hitler parodies themselves.
But the producer of "The Downfall," (Der Untergang in German) Constantin Films which owns the copyright, has asserted its rights under copyright law and is taking down the videos from YouTube.
In an especially weirdly ironic twist, a Hitler-rant parody about the take-downs of the parody videos was itself taken down.
Defenders of Internet freedom, however, note that the parodies appear to be protected under the "fair use" doctrine of U.S. copyright law which allows a certain amount of a copyrighted work to be used without the owner's permission so long as it falls into one of the several categories.
Section 107 of the copyright law says:
... The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Courts have ruled that parodies of copyrighted works can be instances of fair use. But Internet free speech advocates are complaining that YouTube is still taking down the videos because its automated content screening system isn't able to make the necessary distinctions between fair use and true infringement.
Meanwhile, the free speech advocates say, some copyright owners are asserting their rights, sometimes excessively and wrongly so, under the Digital Millennium Copyright Act.
Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, wrote on the organization's Deeplinks blog:
In a depressing twist, these remixes are reportedly disappearing from YouTube, thanks to Constantin Film (the movie's producer and distributor) and YouTube's censorship-friendly automated filtering system, Content I.D. Because the Content I.D. filter permits a copyright owner to disable any video that contains its copyrighted content -- whether or not that video contains other elements that make the use a noninfringing fair use -- a content owner can take down a broad swath of fair uses with the flick of a switch. It seems that's exactly what Constantin Film has chosen to do.
This is hardly the first time that Content I.D., has led to overbroad takedowns of legal content. Copyright owners have used the system to take down (or silence) everything from home videos of a teenager singing Winter Wonderland and a toddler lip-syncing to Foreigner's Juke Box Hero to (and we're not making this up) a lecture by Prof. Larry Lessig on the cultural importance of remix creativity.
YouTube users do have options for response (read our "Guide to YouTube Removals" for details.) But YouTube's procedures for "removing" videos have created considerable confusion among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Others may be leery of exercising the dispute option. While the risks may be low, our broken copyright system leaves users facing the prospect of paying outrageous statutory damages and even attorneys' fees if they stand up, fight back and, despite overwhelming odds in their favor, lose. It's a gamble many people just aren't willing to take, even when their works are clear fair uses.
If copyright owners want to block remix creativity, they should have to use a formal DMCA takedown notice (and be subject to legal punishment if they fail to consider fair use), rather than a coarse automated blocking tool. That is one reason we called on YouTube to fix the Content ID system so that it will not automatically remove videos unless there is a match between the video and audio tracks of a submitted fingerprint and nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work. That was over two years ago, and YouTube told us then that they were working on improving the tool. If YouTube is serious about protecting its users, it is long past time for YouTube to do that work.