Hitler Reacts to Copyright Claims

As predicted, a Hitler parody of Constantin Film’s move to YouTube to remove parodies of “Downfall” with copyright claims has been made:

Warning: The language is decidedly NSFW but, then again, it’s just text.

And, for once, “Hitler” and I are in complete agreement.  DMCA gives way too much power to those who issue copyright infringement claims.  Even when there are clear Fair Use rights, most of us have no choice but to pull material off our sites.  For one thing, the law basically forces hosting companies to shut down sites that don’t comply.  For another, it’s simply too expensive and time-consuming to fight it in court.  By the time the court ruled in our favor, we’d be broke and the content in question will long since have passed from public interest.  But, as “Hitler” points out, Google isn’t like the rest of us.  They host their own content and have deep pockets and, one presumes, lots of lawyers.

Then again, as Ars Technica‘s Jacqui Cheng notes, Constantin didn’t actually use a DMCA takedown but YouTube’s own ContentID system.

A YouTube spokesperson told Ars that copyright owners are allowed to decide what level of “fair use” they’re comfortable with—they can choose to keep content under a minute long online while blocking longer clips, for example. Copyright owners can also choose to keep videos that use under a certain percentage of their content while blocking those with more.

This, of course, allows copyright owners to go as far as they want. If they so choose, they can flip the switch on everything they don’t like—even if the clips otherwise constitute fair use—and watch the videos disappear. The EFF has publicly hammered YouTube to tighten its ContentID requirements, but the company seems content to let copyright owners themselves determine what’s OK and what’s not. All users can do is submit a dispute through YouTube.

This system suits YouTube’s needs well, since it not only keeps them out of court but, more importantly, allows them to keep copyrighted content on their site in most cases. Despite the site’s origin as a place for amateur videos, it is mostly presentations of copyrighted material.  Still, in the cases of the Hitler parodies, it’s pretty clear that we’ve got fair use.

Reason’s Tim Cavanaugh adds,

The legal merits of Constantin’s argument are clear: They do not exist. Downfall parodies take less than four minutes of a 156-minute film, and use them in a way that is unquestionably transformative. Maybe Moturk49 was somehow making a ton of money from his or her Xbox-related parody, but it seems unlikely. In any event, the Supreme Court’s 1994 decision in the “Hairy Woman” lawsuit established that the commercial nature of a parody does not render it presumptively unfair, and that a sufficient parodic purpose offers protection against the charge of copying.

Not that that will matter. The issue is YouTube’s kneejerk takedowns. The site is free to do what it likes; nobody will bother going to court over something so ephemeral as a Hitler joke; and though YouTube is obviously the best and most popular forum for any video, it’s not like there’s some inalienable right to run your content there. Still, the use of immediate takedowns is a blunt instrument that YouTube and its owner Google will, I hope, learn to refine in the future. Meanwhile, brand-new Downfall parodies, including the inevitable Hitler-issues-DMCA-takedowns version, are available elsewhere.

The bottom line is that people don’t have any inherent right to post content on Google’s servers and they’ve decided that they don’t want to fight over this issue.  And, unless this drives users to start using sites whose owners show more willingness to defend this sort of thing, there’s no harm to them for caving in, since people will naturally direct their anger at Constantin, not YouTube.

via Jonathan Last

FILED UNDER: Law and the Courts, Popular Culture, Science & Technology, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. giantslor says:

    Ah-ha! “Hitler and I are in complete agreement,” says noted conservative blogger. The veil slips! Haha, just kidding.

  2. roger says:

    Does anyone else see the irony of all talk about Hitler viral videos on the 65th anniversary of Hitler’s last days?