'cause bobody knows fascism like a fascist.
April 22, 2010 1:44 AM   Subscribe

The downfall of "Downfall"?! (SLYT) More info on this from the LA Times. This is why we can't have nice things.
posted by markkraft (95 comments total) 7 users marked this as a favorite

 
"Hitler reacts to the Hitler parodies being removed from YouTube"

Yeah, couldn't see that coming from a mile off...
posted by Jimbob at 1:48 AM on April 22, 2010


.
posted by GoingToShopping at 1:59 AM on April 22, 2010


Has anyone made a downfall video with Hitler complaining about SLYTs yet?

Also, what's a bobody?
posted by pracowity at 1:59 AM on April 22, 2010


Es ist aus.
posted by chillmost at 2:14 AM on April 22, 2010


They should do one where he's realized they've lost the war
posted by floam at 2:20 AM on April 22, 2010 [27 favorites]


The part where Hitler mentions Google's corporate motto is great. I mean, if Hitler is telling you not to be evil then you've got some real problems.
posted by quadog at 2:29 AM on April 22, 2010 [5 favorites]


I felt a great disturbance in Der Force, as if a million Hitler parodies cried out and were suddenly silenced.
posted by benzenedream at 2:34 AM on April 22, 2010 [8 favorites]


Director Hirschbiegel likes them himself, and clearly, as meme partisans have pointed out, it has made his movie far better known that it would have been otherwise.

Dick move there, Constantin. Less publicity is good how?
posted by Jilder at 2:39 AM on April 22, 2010


Das Shark has been gejumpt.
posted by MuffinMan at 2:45 AM on April 22, 2010 [8 favorites]


You know who else stopped being funny after awhile?
posted by weapons-grade pandemonium at 2:45 AM on April 22, 2010 [11 favorites]


Not funny?! You have absolutely no sense of humor, do you?
posted by markkraft at 2:51 AM on April 22, 2010 [1 favorite]


Mirror: Hitler reacts to the Hitler parodies being removed from YouTube. (Vimeo Link)

Just added Constantin to my list of companies that will never get my time or money. The way I look at it, every cent I give Constantin will be used to illegally take down perfectly legal parodies, further eroding my fair use rights.
posted by stringbean at 2:56 AM on April 22, 2010 [2 favorites]


List of Constantin Film productions. Most people are probably boycotting them anyways, although I have to say, I enjoyed the Baader Meinhof Komplex.
posted by creasy boy at 3:08 AM on April 22, 2010


I think somebody should do a shot-for-shot copy of the Downfall scene with different actors talking German-sounding gibberish and make it available to would-be funnypeople, maybe host all the videos that aren't TOO offensive and maybe even do a contest for the funniest premise. It's an opportunity to become a Leader in Internet Funny quick and viral... but then, I have NO show-business sense.
posted by oneswellfoop at 3:13 AM on April 22, 2010 [2 favorites]


Couldn't we just take a clip from the Charlie Brown Christmas special and do the same thing? After all, poor Shultz is dead, how's he going to complain?
posted by HuronBob at 3:13 AM on April 22, 2010


Schultz may be dead, but the lawyers live on...
posted by markkraft at 3:21 AM on April 22, 2010 [2 favorites]


further eroding my fair use rights.

"Fair use". Isn't that just the English translation of "lebensraum"?

I mean wasn't Hitler just exercising Germany's "fair use" rights to Poland? Churchill issued a take down demand, Hitler refused, a few years of bloody litigation ensured, and ultimately it was decided that Germany's invasion was actually unlawful infringement.
posted by three blind mice at 3:34 AM on April 22, 2010 [5 favorites]


I am cancelling my trip to see "Die Superbullen - Immer Freund und Helfer" in protest.
posted by sgt.serenity at 3:38 AM on April 22, 2010 [1 favorite]


three blind mice, that's going a few steps too far. You'd be able to get away with a lot more if your joke were funny.






:P
posted by Dysk at 3:52 AM on April 22, 2010


Thanks for that list of Constantin Film productions creaky boy, I'm going to rent every film on it because Der Untergang was fantastic and I loves me a good movie.
posted by dabitch at 3:55 AM on April 22, 2010 [1 favorite]


Couldn't this update just go in the open thread?
posted by FelliniBlank at 4:01 AM on April 22, 2010


Constantin Films spokesman from the other thread: We are trying to protect the artists.

But yet, from the article: Director Hirschbiegel likes them himself...

Now it is true that he is not the only 'artist' involved in that scene - though he is one of the biggies. Now which are the 'artists' in that scene that have asked for this protection? I'm almost willing to bet that they'd oppose it, to a (wo)man.
posted by Dysk at 4:07 AM on April 22, 2010


You'd be able to get away with a lot more if your joke were funny.

Who said it was a joke? There is a long history of people taking what does not belong to them and creating some excuse of legitimacy for it.

Perhaps Hitler should have called his invasion of Poland a parody and blamed the English and Polish for not having any sense of humor.
posted by three blind mice at 4:11 AM on April 22, 2010


Thanks for that list of Constantin Film productions creaky boy, I'm going to rent every film on it because Der Untergang was fantastic and I loves me a good movie.

I can promise you that not all of those movies are good.
posted by creasy boy at 4:12 AM on April 22, 2010


three blind mice, I was giving you the benefit of the doubt. I'm starting to think now that this was a mistake...
posted by Dysk at 4:15 AM on April 22, 2010


I'm going to rent every film on it because Der Untergang was fantastic and I loves me a good movie.

Just pirate them off bittorent!
posted by delmoi at 4:25 AM on April 22, 2010 [1 favorite]


Perhaps Hitler should have called his invasion of Poland a parody and blamed the English and Polish for not having any sense of humor.

I heard every time you watch a Hitler parody on youtube, a Gypsy is executed.
posted by delmoi at 4:26 AM on April 22, 2010


Is there one of these Downfall parodies that is Hitler's reaction to seeing goatse for his first time.
posted by NoMich at 4:34 AM on April 22, 2010


Muß es sein?
posted by Meatbomb at 4:38 AM on April 22, 2010 [1 favorite]


As usual, three blind mice takes the position that our collective culture should be dictated to us from on high, while we remain meek, EULA-worshiping "consumers'.

Booooooring!
posted by Jimbob at 4:47 AM on April 22, 2010 [2 favorites]


.
posted by doublehappy at 4:47 AM on April 22, 2010 [1 favorite]


Brother Dysk: three blind mice, I was giving you the benefit of the doubt. I'm starting to think now that this was a mistake...

Why a mistake? Because we might disagree on the matter of substance?

I spent years over in the Lessig blog arguing the other side of "fair use." In brief, my position is that Youtube (Google) makes a ton of money from the copyrighted material they distribute. None of this money is shared with the original content creators (unless they happen to be shareholders.) This battle called "fair use" it is a battle between one corporate giant (Google) against other corporate giants (RIAA, MPAA, etc.)

Google happens to have legions of volunteers to argue their case (here again at no cost to Google) to make this appear to be about something other than money.

If Google would agree to share some of their revenue with Constantin Film, I bet the problem could be resolved in a minute and you could watch all the Hitler you wanted.

The erosion of "fair use" isn't the problem - Google's greed is the problem.
posted by three blind mice at 4:49 AM on April 22, 2010 [6 favorites]


threeblindmice: Why a mistake?

Because you just equated fair use (or arguably minor copyright infringement) with Hitler's campaign in the second world war. This doesn't strike you as problematic or offensive?
posted by Dysk at 4:51 AM on April 22, 2010 [3 favorites]


The Downfall movie is every bit as hilarious as the Toob parodies. The secret to the laffs is thematic repetition, sort of like every SNL skit since the dawn of time: The movie will go half an hour all quiet, with Hitler petting dogs and being nice to kids and stuff, then another soldier will come in the room with more bad news and avuncular buddy-Hitler suddenly gets all old school Hitler-y Hitler and flips the fuck out for 10 minutes. Then we're quickly back to Hitler drinking lemonade and playing with kittens for another half an hour, just to set-up the hilarity of the next bad news Hitler flip out. It does this like four or five times.

Without the Toob paradies this hidden gem of modern comedy may have never come to my attention.
posted by dgaicun at 4:59 AM on April 22, 2010


There's also the argument the Google is merely monetizing a distribution platform, not content. If we were all photocopying this, would you be angry at paper manufacturers?

Or, perhaps a better question, by what means would you have us distribute our Untergang parodies so as to avoid generating revenue for people who do not own the copyright?
posted by Dysk at 5:03 AM on April 22, 2010


Paper manufacturers wouldn't start producing paper that couldn't be printed with that content at the request of the author.
posted by doublehappy at 5:06 AM on April 22, 2010


Also, I was really hoping to spot that time traveller in this video.
posted by doublehappy at 5:08 AM on April 22, 2010 [2 favorites]


doublehappy, you're conflating copyright owners and authors. The director of Der Untergang has no problem with the parodies, the publisher does.

Also, Google hasn't created an online video platform (at all, YouTube did before the bailout, but their platform) doesn't have an analogous property to what you're describing. Nobody can prevent me uploading content to YouTube based on its copyright status. What can be done, however, is destroying it after the fact. We can do this with paper, too. I'm not convinced we should in an analogous situation, and if anyone is a lawyer, I'd like to know if we do?
posted by Dysk at 5:19 AM on April 22, 2010


There is a long history of people taking what does not belong to them and creating some excuse of legitimacy for it.

Yeah! Why should the rule of law and specific permissions or prohibition have any bearing!
posted by Kid Charlemagne at 5:20 AM on April 22, 2010


tbm -- that's a good point.

But Google isn't the creator of the fair-use parodies. The creators of those short videos have used the original solely for a non-profit purpose ad receive no revenue. Google/Youtube receive revenue for providing the hosting service from ads, not from the purchase of the videos themselves.
posted by jb at 5:27 AM on April 22, 2010


This battle called "fair use" it is a battle between one corporate giant (Google) against other corporate giants

Dude, I don't know how to break this to you, but the fair use has been written into law since 1976 and was recognized in common law well before that.

Even if you ignore the revision of history you imply, trying to dismiss it as a fight between a bunch of dot coms is a lot like me shooting you and then trying to create public support by asking why the police aren't arresting you for stealing my bullets. (And equally likely to work.)
posted by Kid Charlemagne at 5:33 AM on April 22, 2010


I saw the film before seeing any of the parodies. I thought they would only be funny to people who have seen the film and know that scene in context.
posted by Dick Laurent is Dead at 5:38 AM on April 22, 2010


tl;dw
posted by tommasz at 5:43 AM on April 22, 2010


I'll just flat-out say I'm ignorant about this stuff and ask the question:

is adding subtitles to existing copyrighted material and re-releasing it deemed "fair use"? My (limited) understanding is that "fair use" exists to protect things like academic studies, media surveys, reviews and other things that are created to comment on the work itself, and I'm not quite sure how making funny new subtitles falls into that category, no matter how much I like them (and I do, a lot).

My only real reading-up on the subject to date was in the Penny Arcade vs. American Greetings/Strawberry Shortcake days, but as I understood it, "fair use/parody" in that context worked like this:

You can make fun of something directly, using that thing, if your making-fun applies directly to the thing and provides insight or commentary on that thing.

But if you use an entirely different and unrelated thing to make fun of the first thing -- like using Strawberry Shortcake to make fun of American McGee in a way that doesn't really comment on Strawberry Shortcake at all -- that's not so good.

I could make a MetaFilter parody site that replicates the MetaFilter site but with hilarious content written by Scott Baio. Cool. But I couldn't make a copy of Fark to make fun of MetaFilter, because that's in no way a legitimate comment on Fark. I can make a parody McDonald's menu to critique their menu and marketing practices, but I can't re-dub a Nike commercial to talk about how much I hate McDonald's. And so on.

I'm sure there are nuances here, IANAL, and I'm not trying to turn this into Copyright Argument Circus, but I'm not entirely sure that "fair use" means what the Downfall parody people think it means.
posted by Shepherd at 5:51 AM on April 22, 2010 [3 favorites]


Has anybody made the "you know who else..." joke yet?

You know who else stopped being funny after awhile?

Okay, good. That's covered. Anybody done a reference to Godwin's Law yet? No? No one? All right, people, let's get that in this thread somewhere and we can wrap it up and call it a day.
posted by el_lupino at 5:55 AM on April 22, 2010 [1 favorite]


Shepherd, "fair use" with respect to satire and parody is somewhat different to fair use in other contexts. As far as I can tell, the fair use analysis criteria the Supreme Court lays down in the Campbell vs 2LiveCrew case (some scrolling) allows these videos as protected speech.

"However, when commercial gain appears to be the primary motive such as in movies, books, songs, plays and visual art the parodist's work and its defense under the First Amendment and fair use doctrine has frequently resulted in a number of court decisions that are seemingly irreconcilable."

So it's more complex than at first glance, but there is certainly precedence for these videos being protected parody.

All of the above applies only to the US - I'm not actually sure what courts are relevant, here.
posted by Dysk at 6:08 AM on April 22, 2010


Hooray! Censoring hundreds of parody works is a huge advancement for the arts. Thanks copyright cartels!
posted by mullingitover at 6:08 AM on April 22, 2010 [1 favorite]


Look, fair use or not, the videos amount to a huge viral ad for the movie. Constantin is run by morons.
posted by kittens for breakfast at 6:26 AM on April 22, 2010 [5 favorites]


Churchill issued a take down demand, Hitler refused, a few years of bloody litigation ensured, and ultimately it was decided that Germany's invasion was actually unlawful infringement.

Try as the British might have to fight Hitler on this issue, it was really the hostile takeover of assets by the conglomeration of Gazprom, UAC, Almaz-Antey, Novolipetsk, and others and their saturation of the German markets with high volumes of cheaply produced heavy metals and manufactured goods that lead to the true downfall.
posted by Pollomacho at 6:29 AM on April 22, 2010 [1 favorite]


Oh, and it was Neville "Peace in Our Time" Chamberlain that issued the cease and decist. /Pedant
posted by Pollomacho at 6:33 AM on April 22, 2010


This was the article where Downfall's director went on the record as a fan of the meme:
As for the idea of such a serious scene being used for laughs, Hirschbiegel thinks it actually fits with the theme of the movie. "The point of the film was to kick these terrible people off the throne that made them demons, making them real and their actions into reality," he says. "I think it's only fair if now it's taken as part of our history, and used for whatever purposes people like." He adds, "If only I got royalties for it, then I'd be even happier."

posted by zarq at 6:36 AM on April 22, 2010 [1 favorite]


Oh this is fun! I have some responses to offer:

Google is evil for taking down the clips

No, I don't think so. Rather, they are complying with the letter and spirit of the law. How would you like it if some of your work was appropriated ("parodied") in a way you didn't approve of, you sent a request to YouTube to take it down, and they just ignored it?

my position is that Youtube (Google) makes a ton of money from the copyrighted material they distribute

I think until very recently YouTube was a loss leader, and perhaps they still are. They certainly don't make "a ton" of money and they certainly could make tons more (interstitial video ads?)

Constantin are idiots

This move seems to have brought them more publicity than all the parodies combined.
posted by eeeeeez at 6:39 AM on April 22, 2010 [1 favorite]


Anybody done a reference to Godwin's Law yet? No? No one?

My favorite part is when Hitler Godwin's himself in that video, and then the lady whispers "Don't worry, he'll realize the irony soon."
posted by SmileyChewtrain at 6:39 AM on April 22, 2010 [6 favorites]


eeeeez: "No, I don't think so. Rather, they are complying with the letter and spirit of the law. How would you like it if some of your work was appropriated ("parodied") in a way you didn't approve of, you sent a request to YouTube to take it down, and they just ignored it?"

They're going well beyond the letter of the law unless they've received a DMCA takedown request for each and every video that's been disappeared. Their content ID matching system is a wet dream for the media business, but it's really arbitrary and hostile to users. Taking a home movie of your baby's first words, and the TV is on in the background with Thelma & Louise playing? The content ID matching will note the copyrighted audio and automagically mute your entire clip.

I'm looking forward to closing my youtube account and moving on to greener pastures.
posted by mullingitover at 6:50 AM on April 22, 2010 [2 favorites]


I think until very recently YouTube was a loss leader, and perhaps they still are. They certainly don't make "a ton" of money and they certainly could make tons more (interstitial video ads?)

Just because revenues do not outweigh expenses does not mean that there are no revenues.
posted by Pollomacho at 7:16 AM on April 22, 2010 [1 favorite]


How would you like it if some of your work was appropriated ("parodied") in a way you didn't approve of, you sent a request to YouTube to take it down, and they just ignored it?

Well, the whole point of fair use is to let people use copyrighted materials in ways that the right holders don't like. If the test for fair use included the question "Does the content creator like it?" then there wouldn't be too many protected uses. Downfall parodies are pretty pointless, but satire often requires appropriating or re-contextualizing copyrighted works. The main point in this case to me at least is not what is or isn't fair use, but that Google can and does work with copyright holders to keep content that should be protected by fair use off of an "open" content publishing platform.

If Google would agree to share some of their revenue with Constantin Film, I bet the problem could be resolved in a minute and you could watch all the Hitler you wanted.

I'm not sure if it would apply in this case, because it's not clear how much of the rights Constantin Film owns with regard to these parodies and how much the people who added the subtitles own, but in general Google does share revenue with copyright holders. In fact, they have been relatively successful in convincing a lot of major content publishers to leave the videos up and share in the revenue instead of asking to have them taken down. From their blog post about the Viacom lawsuit:

Working in cooperation with rights holders, our Content ID system scans over 100 years worth of video every day and lets rights holders choose whether to block, leave up, or monetize those videos. Over 1,000 media companies are now using Content ID -- including every major U.S. network broadcaster, movie studio, and record label -- and the majority of those companies choose to make money from user uploaded clips rather than block them.
posted by burnmp3s at 7:16 AM on April 22, 2010 [1 favorite]


I don't know, I thought this one went above and beyond the previous clones in terms of its finesse and grace. Bloody brilliant, I thought. No matter what you think about copyright law, the fact that a Downfall parody got us talking about it is amazing.
posted by makethemost at 7:17 AM on April 22, 2010


Look, fair use or not, the videos amount to a huge viral ad for the movie. Constantin is run by morons.
posted by kittens for breakfast at 6:26 AM on April 22


This. This. This.

It is 2010 and most all "old media" of all types STILL have no clue, no slight tiny glimpse, of how the internet actually works and how it stands to make them a fuckton of money.
posted by discountfortunecookie at 7:18 AM on April 22, 2010 [1 favorite]


"This battle called "fair use" it is a battle between one corporate giant (Google) against other corporate giants (RIAA, MPAA, etc.)"

Having once been someone who once volunteered to help a young, volunteer-run, open source LiveJournal deal with thousands of DMCA takedown requests, all I can say is that that your proposed gutting of PEOPLES fair use rights as part of THEIR CONTENT and THEIR RIGHT TO FREE SPEECH is a really convenient spin.

LiveJournal didn't eventually become a profitable dotcom because of intentional theft. It became one because it intentionally enabled users to control their own streams of content, and post whatever they wanted to the 'net.

Naturally, some of what was posted could be seen as an infringement of somebody's rights, but it could just as easily be the guy down the street being infringed upon for a bad skateboard accident, or someone complaining that someone else took a video of them and posted or creatively repurposed it.

People naturally do this, btw. It's part of how culture works. Copying and repurposing other people's works to create something new has been with us for centuries. You are against individuals having the right to do this, I presume... but what if they're a street artist? Aren't they, through publicly flaunting the culture of creating something new through reusing someone else's stuff, essentially a bunch of pirates... presumably with Banksy as public enemy #1?

"Google happens to have legions of volunteers to argue their case (here again at no cost to Google) to make this appear to be about something other than money."

For someone who "spent years over in the Lessig blog" arguing these matters, you seem remarkably untouched and unaffected by your experience... presumably because, unlike others here on MeFi, you've never had your community, its free speech, and its continued existence threatened by a huge company whose lawyers ask for wide-ranging blanket censorship of thousands of users, while you. a person outnumbered by independent content creators by a factor of 100,000-to-1, are supposed to spend your time, not keeping the site up, functioning, and improving, but constantly reviewed, censored, and free of copyright violations of an entire major record label, and their dozens of subsidiaries.

So excuse me when I say that for a stubbornly set-in-their-way person who refuses to see this as a matter of individual liberties and free speech, set in an environment where small, independent ISPs and large corporate ISPs -- ISPs, as defined by the DMCA itself, which *explicitly* states that said ISPs are *completely legal and within their rights* to host an individual's content, so long as they cooperate with DMCA takedown orders that are often not legal and fair regarding individual fair use rights -- well... let me just state that your quote above ignores all the small, indie websites and individuals who are forced into either agreeing with censorship, or risking complete financial destruction. Countless sites and small communities have been destroyed as a result.

What's more, what you are arguing has absolutely no legal basis in fact. Indeed, the RIAA and MPAA argued in favor of the DMCA, because they quite rightly saw it as a way to make sure that the rights of duplication and reuse that people had in the analog age didn't really extend to the digital one.

1> Google doesn't illegally profit off of other people's content. The DMCA explicitly says that *PEOPLE* have the right to post whatever they want, so long as Google responds to legitimate takedown orders. That's blanket protection under US law!

2> Google's "legions of volunteers" are, in fact, people who want their rights to freedom of speech and expression preserved to the fullest extent possible.

You apparently think that it wasn't enough that the RIAA/MPAA passed the DMCA legislation which took away:

- The right of people to have adequate legal representation and a day-in-court before their content is taken down from the internet.

- The right of people to have their "fair use" rights considered, before their content is taken down from the internet.

- The right of ISPs to host a person's content in a way that fully protects their free speech rights and rights to defend them in court, without specifically incurring full legal liability for doing so.

- The right of hardware designers to create products which could enable copying or not enable anti-copying schemes.

- The right to rapidly have someone else do the work to take down any potential use of "their" content, without consideration of previously established rights such as "fair use"; those rights legally still exist, but as far as DMCA requirements are concerned, they must be ignored on takedown orders.

- The ability of small ISPs to host content it knows to have legitimate or protected free speech rights to exist, as any requests, however unreasonable, must be complied with fully as a matter of survival.

- The right of people to link to content on the internet, without undue restrictions.

So, basically, despite the highly beneficial law which the RIAA and MPAA helped craft, you're arguing that a theft is taking place... albeit one that has no legal basis whatsoever... and that clearly, more legislation should be passed to not only take away more individual liberties, but also to forceably take away people's money as well... never mind the fact that such legislation would essentially force any reasonably successful not-for-profit website that fosters the least bit of community to shut down?

I am sorry for you, three blind mice, for though you have been surrounded online by people who know a great deal about the issues at hand, you have apparently spent years of your life playing Devil's advocate so adamantly and dogmatically, that you apparently have wasted your time entirely and learned nothing as a result.
posted by markkraft at 7:32 AM on April 22, 2010 [9 favorites]


Now look what you're done.
posted by bicyclefish at 7:41 AM on April 22, 2010 [1 favorite]


(I should have said "five fresh fish". It was unintentional... but perhaps a small pack of vision-impaired rodents more accurately describes those who blindly support the position in question.)
posted by markkraft at 7:41 AM on April 22, 2010


kittens for breakfast: "Look, fair use or not, the videos amount to a huge viral ad for the movie. Constantin is run by morons."

It sounds like Constantin maybe had the videos taken down because they weren't making money from them.
"Moszkowicz disputed the idea that all the attention to "Downfall," which grossed $5.5 million at the U.S. box office and was nominated for a best foreign language film Oscar, had helped the film.

"We have not been able to see any increase in DVD sales," he said. "There is no correlation between Internet parodies and sales of a movie, at least not that I am aware of."
posted by mullingitover at 7:44 AM on April 22, 2010 [1 favorite]


"I thought we were free to make fun of Hitler on the internet...but I guess not"

That made me chuckle.
posted by bonobothegreat at 7:51 AM on April 22, 2010 [1 favorite]


"There is no correlation between Internet parodies and sales of a movie, at least not that I am aware of."

They should perhaps talk to my friend Jen, who posted to her FaceBook awhile back that she saw "Downfall", adding it to her NetFlix queue after finding out about the movie through the meme... she was really late to find out about it, surprisingly!

She was surprised at how good the movie was. I believe that she even posted the "Downfall" trailer from YouTube to her FB as well.

If Constantin want to contact her, I would be more than willing to connect her with them.
posted by markkraft at 7:55 AM on April 22, 2010


It's worth noting that just because a parody gets taken down, it doesn't mean it was not Fair Use. The Penny Arcade incident is a perfect example. Did they take it down because they knew they were wrong? Hardly! They were squarely within their rights, but the Penny Arcade guys (especially in 2004) don't have the resources or time to fight a large corporation.

The issue with Downfall and Youtube is largely the same. Obviously Google has much deeper pockets than Penny Arcade, but they've been trying hard to keep on the good side of an increasingly-cranky movie industry. A 2-minute clip of a 2-hour movie is sufficiently small (under 2%) to be considered Fair Use by itself if used in an exemplary manner, and you can find all sorts of short movie scenes on YT. Furthermore, the Downfall parodies are a transformative use: they twist the meaning of the scene, and add subtitles that have little to do with the actual scene aside from Hitler's obvious anger and frustration.

So, basically we have a clear-cut example of Fair Use, with only the threat of lawsuits and additional difficulty from the MPAA, et al. keeping YouTube in line. As it turns out, parodies don't actually have to be good or funny to be Fair Use. It so happens that Downfall parodies are hilarious, but as long as lawsuits are easy and expensive in America, Fair Use is easily threatened by takedown notices.
posted by explosion at 7:57 AM on April 22, 2010 [3 favorites]


I certainly wouldn't have Downfall on my Zip (the Canadian equivalent of NetFlix) if I hadn't seen these parodies. I'm quite intrigued by flims/miniseries/history about WWII, but hadn't heard of this one until the Downfall parodies starting making the rounds.

And yes, the best part of this video was seeing Hitler Godwin himself.
posted by never used baby shoes at 8:09 AM on April 22, 2010


If Hitler is a South Park fan, he's going to get even more pissed when he hears about South Park getting censored.
posted by homunculus at 8:46 AM on April 22, 2010


It is 2010 and most all "old media" of all types STILL have no clue, no slight tiny glimpse, of how the internet actually works and how it stands to make them a fuckton of money.

So does the internet work in a way that earns Constantin a 'fuckton' of money?

Google might be monetizing traffic but I don't see how Constantin benefits from this other than through general 'publicity'.

Out of the millions of views to the bevy of Downfall parodies, how many have translated to DVD purchases or rentals? What is your proposed 'new media' method for Constantin to rake in the dollars?
posted by mazola at 8:49 AM on April 22, 2010 [1 favorite]


Perhaps the companies in question do not know are are unaware of the impact they have on the individuals who use the internet, and on the individuals out there, trying to run great websites that foster strong communities.

I oversaw the small volunteer abuse team on LJ, and we had some very important issues we tried our best to handle.

There were issues like cyberstalking, and really incredibly organized and meanspirited online abuse, some of which was criminal and caused people great distress. There were anonymous reports of things like child molestation, or rape... things that were so overwhelming for the people effected that when reported to us, we tried our best to help them with, spending our time researching local resources for them.

There were personal disputes that often started involving a dozen people on each side, with huge sh*tstorms of threats and abusive comments. We tried our best to actually communicate with these young people, get them to take a time-out, let them know that what they were doing was not acceptable, and was causing a lot of pain and unintentional victims... and get them to agree to disagree. You'd be surprised by the number of not only resolved personal disputes we achieved without the need to suspend people, but also the number of actual friendships that were created from this.

In short, we tried to treat our fellow LJ'ers like their lives, their content, and their accounts on our site mattered. We didn't want to slam down the ban hammer. We strived to protect their rights, as fully as possible, to the point that our policies made it clear that permanent suspension was the last resort, and that we should try numerous other alternatives first.

There were even some particularly bad situations out there which I would call attention to in my personal journal, helping leverage the power of community to see to it that people wouldn't be left homeless, asking whether any locals could help a LJer who came down suddenly ill on an overseas trip get some basic help, etc. There was the person stuck in New Orleans during Katrina, in a dangerous part of the city, who I connected with another LJer who was there. Rather than riding out the disaster in the Superdome, they spent it in a safe highrise, making new friends for life.

And then there were those who were very clearly suicidal, or who posted suicide notes to their blogs. Very early on, I created some basic information and policy on how volunteers should address such matters.

About a year later, I had someone I had never heard of before contact me on LJ. She wanted to say thank you, because one of our people got in touch with a LJ friend of hers, thanks to our internal policy... and that friend saved her life. She was the first of three such cases I became aware of while at LJ. I can't tell you how much that means to me. It basically means that despite how screwed up LJ became, and despite how it sold out its core beliefs, my time there was absolutely not wasted.

People who run sites usually do their best to look out after their users, because what they do matters to them on a very personal basis. (If they're any good at it, it damn well should!) Unfortunately, with growth, legalities slip in, and real-time requirements like DMCA requests go from a trickle to a torrent, which you are supposed to respond to very rapidly indeed -- usually within 48 hours.

All such complaints get put into a queue that unfortunately takes precedence over everything else. Due to the legal requirements, the effected people in question usually got no warning, no opportunity to correct the problem, no chance to back up data, etc... even though the copyright violation was usually a small part of a larger piece of content. A friend's birthday. In one case, it was a friend's favorite song, posted at the end of a memorial post dedicated to them, which was accompanied by a long post of his memories. Given that we didn't have the rights to change a person's post -- only delete them -- this was obviously not good.

I now admit... I basically violated the terms of the DMCA in that case, removing it from the common queue, handling it myself, and giving the user in question 24 hours warning to change his post. But in most cases, nowadays? Down comes the hammer, because that is exactly what is required, both by the law and by employers, as their support teams are invariably understaffed, overstretched, with a lot to do.

Let me make it very clear. Legalities, liability, and requirements such as the DMCA help to destroy the kind of support environment that can actually makes people's lives better, protects their rights, help them through tough spots, and yes, which can sometimes even save lives.
posted by markkraft at 8:56 AM on April 22, 2010 [3 favorites]


mullingitover: "It sounds like Constantin maybe had the videos taken down because they weren't making money from them."

from the same article:
"However, YouTube promotes the ability to monetize such videos and allow the copyright holder — if it chooses to allow the user-uploaded videos to remain — to earn a percentage of advertising from the clips. YouTube claims that the majority of the more than 1,000 media companies using its Content ID technology opt for this route."
So this doesn't seem to be about them not being able to make any money. Maybe they don't feel that they're making enough money. It seems more like studio lawyers erring on the side of content control than anything else.

On preview, it may not be "a fuckton of money," but Constantin could get paid. More about youtube's Content ID system in this article.
posted by Uncle Ira at 8:58 AM on April 22, 2010


What is your proposed 'new media' method for Constantin to rake in the dollars?
posted by mazola at 11:49 AM on April 22 [+] [!]


Porn!
posted by xorry at 9:04 AM on April 22, 2010 [1 favorite]


One thing I'm wondering is, if Google is actively policing copyright on their site, how do they retain common carrier status? It would seem that by going beyond the DMCA framework and examining the content that's uploaded, they're making themselves directly liable for any infringement that happens on YouTube.
posted by mullingitover at 9:10 AM on April 22, 2010


I'm surprised that no one has made a 3rd party site to host and overlay subtitles on YouTube (and/or other video host) sites. All subs could link to one file (or a series of videos, or even providing alternative video links if one is country-blocked), which would represent the unaltered formatting of the studio or whatnot. Something akin to Tubedubber, Mixtube, YouTube Doubler, two youtube videos and a motherfucking crossfader, etc. Sure, scripting out the timing would take more effort than linking a few videos together, but people are already doing that with some video editor.
posted by filthy light thief at 9:42 AM on April 22, 2010


Fair-y Use Tale
posted by toodleydoodley at 9:47 AM on April 22, 2010 [1 favorite]


What an incredible thread. Thanks again, MetaFilter, for helping me see not only two sides of the coin, but the myriad other sides as well.

FWIW, I think Constantin AG is just taking their ball and going home with it. The good part of things like this, is that eventually - 20 to 50 years - we should have much better standards and application of Fair Use. The hard part, the scary part, is the idea that the wrong side might win the war.
posted by Xoebe at 9:52 AM on April 22, 2010


If this meme ends here, then it ends on a high note. This was one of the better Downfall parodies. Oh well, back to looking for cat videos then.
posted by Hardcore Poser at 10:41 AM on April 22, 2010


The official YouTube Blog has something about this today, in a blog post titled Content ID and Fair Use. They linked to one of these Downfall videos, Hitler, as "Downfall" producer, orders a DMCA takedown, titling the link "parodies." * The post goes on to discuss YouTube Content ID, linking back to a Sept. 2009 post stating over 1,000 content owners now use Content ID (on the YouTube Biz Blog).

The article then notes that Content ID allows rights owners to quickly find (then track, monetize or take down) content as they wish. Also noted: Content ID doesn't differentiate between Fair Use of any sort and copyright infringement, so if you uploaded a video and it's been taken down because of Content ID, it's up to you as the uploader dispute the claim, and if you tick the the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder," the video is back online. The rights owner is notified, and has the option to file a formal DMCA notification.

Ars Technica has a good write-up on Constantin Film's use of Content ID for these clips, and more on Content ID. (Found via CNN, where the article lacks all the nice links found in the original Ars Technica article. Weird.)

* The link, in context: Hundreds of millions of people around the world now use the Web to connect and interact with content online, and a huge percentage of them go even further: they express themselves via parodies, celebrate their favorite videos with mashups, and use music in educational presentations.
posted by filthy light thief at 10:46 AM on April 22, 2010 [4 favorites]


Doesn't the YouTube blog post above say essentially that the users who have posted the Downfall parodies can simply dispute the "ContentID" charge which punts it back to Constantin and bring the video back up?

I've seen several Downfall videos this morning warning of them being taken down -- but unless I only checked out the less popular ones, they all still seem to be up at the moment?
posted by cavalier at 11:12 AM on April 22, 2010


"Doesn't the YouTube blog post above say essentially that the users who have posted the Downfall parodies can simply dispute the "ContentID" charge which punts it back to Constantin and bring the video back up?"

Yes, they do leave users with the 'get sued' option. The DMCA framework is still in place, YouTube just offers institutional copyright holders a tool which lets them automate the process of discovering and disputing the published work. Everywhere else on the internet, they'd have to manually discover each work and submit individual DMCA takedowns. Google is essentially building robots to do this work for them, and is removing the videos without the DMCA takedown notice. It's unprecedented in video hosting.
posted by mullingitover at 11:35 AM on April 22, 2010


Google is essentially building robots to do this work for them, and is removing the videos without the DMCA takedown notice. It's unprecedented in video hosting.

This is an incomplete assessment of Content ID. It's not an automatic takedown system, but a way to flag content for rights holders. What the rights holders do is up to them. From the Ars Technica article:
The idea is to give copyright holders the ability to monetize their content uploaded by other users or block it, and they can block varying levels of it depending on their own tastes. 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.
Content ID is just audio and video "fingerprinting." What happens with that info is up to rights owners, and YouTube uploaders can reinstate videos taken down due to Content ID flags quickly, but may then be subject to formal DMCA takedowns.
posted by filthy light thief at 11:42 AM on April 22, 2010


We will all forget about it by tomorrow and go back to watching cat videos.
posted by dibblda at 11:46 AM on April 22, 2010 [1 favorite]


It's unprecedented in video hosting.

This notion is amusing. YouTube provides a free way to host videos, and the videos can potentially be viewed by anyone, as long as the service remains and as long as you don't get flagged for copyright violation. FREE.

Maybe it started with AOL and GeoCities, this notion that you could get free hosting for small projects (or large projects, if you broke them up into pieces). Free space to post or copy what you like. With YouTube, the uploader doesn't pay for web design, for file conversion, for hosting, or even for bandwidth. Neither does the viewer.

"During the first 18 months of YouTube’s operations, from February 2005 when the domain was first purchased through August 2006 ... $8 million or so went to paying for infrastructure needed to run the site, with a vast majority of that money going toward the site’s web hosting costs." Then there's "about $3.6 million on employee compensation, travel, facilities, costs and the like. By November 2005, its regular operating expenses were about even with infrastructure costs — at a little more than $130,000 per month, but not long after that, the company’s web hosting bills really started to take off as the video sharing site gained traction."

And the uploaders and viewers weren't charged for anything of that.
posted by filthy light thief at 11:53 AM on April 22, 2010


flt: "This is an incomplete assessment of Content ID. It's not an automatic takedown system, but a way to flag content for rights holders."

True that it's not a blanket automatic takedown, but if a rightsholder (Warner Music being an example) decides to go with that option, Google will censor it for them (and without the DMCA takedown request that's exactly what it is).

What I'm wondering about though, is does this only work for the entrenched players, or can I get Google's robot army to enforce my copyright claim over my cat videos too?
posted by mullingitover at 11:55 AM on April 22, 2010


It's not a 'get sued' option, it's a 'get to receive a DMCA takedown notice' option. There's a difference, in my opinion, between tucking tail and running in the other direction due to someone's opinion of something I uploaded, versus an official DMCA takedown notice (which, yes, may eventually lead to litigation if I do not comply).
posted by cavalier at 11:57 AM on April 22, 2010


Slight derail: With drive space being so cheap, is there a decent Firefox extension that will autosave all viewed Youtube videos (not just one-click download) for archival purposes?
posted by benzenedream at 12:33 PM on April 22, 2010


One thing I'm wondering is, if Google is actively policing copyright on their site

That doesn't happen. All ContentID does is let content creators find work that uses their content. Only the content owners can issue takedowns. (They can also choose not to takedown, which is more common)

And we send the uploader an email explaining what happened, with a link to the fairly simple procedure for filing a counter-notice.

[I can't comment on the merits of any particular takedown, or legality of anything, blah blah blah]
posted by wildcrdj at 1:17 PM on April 22, 2010


an I get Google's robot army to enforce my copyright claim

Here you go: ContentID signup form

For practical reasons I think there are some minimum amount of videos/music/etc you'd have to own, but we definitely have content partners who are vloggers, independent musicians/filmmakers, etc., not just corporations.
posted by wildcrdj at 1:19 PM on April 22, 2010 [3 favorites]


three blind mice said:

"I spent years over in the Lessig blog arguing the other side of "fair use." In brief, my position is that Youtube (Google) makes a ton of money from the copyrighted material they distribute. None of this money is shared with the original content creators (unless they happen to be shareholders.) This battle called "fair use" it is a battle between one corporate giant (Google) against other corporate giants (RIAA, MPAA, etc.)... The erosion of "fair use" isn't the problem - Google's greed is the problem."

When I said "further eroding my fair use rights" I was referring to my fair use right to create a parody of a copyrighted work in the United States.

The erosion of "fair use" is the problem. Google and greed have nothing to do with fair use.

Google is an online service provider. They are protected by the safe harbor provisions of the Online Copyright Infringement Liability Limitation Act (aka "DMCA 512"), not fair use.

Money is not the main issue here either (although it is one factor in the fair use analysis). It's possible to create commercial (for profit) works and still be protected under the parody provision of fair use (Campbell v. Acuff-Rose Music, Inc.).

And I'm not saying that the Hitler videos are a valid parody - they may not be. That's an issue for the courts to decide, not Constantin. My main issue is this:

If I make a Hitler parody, Constantin can (and will) remove my parody before any court decision is made on the validity of the parody. The people at Constantin deprive me of my rights without due process, hence the erosion of my fair use rights statement.
posted by stringbean at 3:51 PM on April 22, 2010


I'm a little surprised by the number of people who think that posting a lengthy segment from a movie, in its entirety, with the only alteration being the addition of funny subtitles, is a "clear-cut" example of fair use.

A parody, for example, is generally considered to be a "a humorous or satirical imitation of a serious piece of art." This ... isn't exactly that, is it?

I mean, I know that Mystery Science Theater 3000 paid for all the rights for the movies they showed. I'm pretty darn sure that Woody Allen paid for the rights for the movie he used as the basis for "What's Up, Tiger Lily?"

I'm in favor of fair use applying to a lot of things -- collage art, for example. But this ... seems to be a pretty iffy usage, honestly. "Clear-cut"? Really?
posted by kyrademon at 5:00 PM on April 22, 2010


I've ignored most of the Hitler parodies as the meme got old fast, but this one made me laugh, especially the line: "Don't worry, he'll realise the irony soon."
posted by bwg at 6:14 PM on April 22, 2010


The sad thing about this? Funny or Die ripped off this parody, and made another, far less clever one.
posted by markkraft at 6:25 PM on April 22, 2010


Always liked this better anyway.
posted by squalor at 10:00 PM on April 22, 2010


Damn, did anyone save that video? It was one of the better downfall parodies, not now it's obviously gone like the rest.
posted by Nightwind at 8:50 AM on April 23, 2010


Henley, DeVore file dueling briefs in copyright battle; are campaign videos fair use 'parodies' or infringing 'satires'?
posted by homunculus at 10:21 AM on April 28, 2010


PSA: Challenging a YouTube Take Down with Fair Use
posted by homunculus at 5:06 PM on April 29, 2010


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