The Hitler brouhaha on YouTube shows the importance of understanding your fair use rights.
It started with Downfall, a German film about Hitler’s last days in power, which has generated an elaborate meme in the online video community. Remixers took a scene that features Hitler having a meltdown with his key staff, and have re-subtitled the scene. One features Hitler screaming about how he has been banned from X-Box Live; another has him upset that his friends won’t join him at Burning Man, and a host of them deal with politics (peaking during the 2008 elections).
The Code of Best Practices in Fair Use for Online Video provides the reasoning by which unlicensed use of Downfall is legitimate fair use: "This kind of activity [combining elements to make a new work, as remixers do] is covered by fair use to the extent that the reuse of copyright works creates new meaning by juxtaposition...The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended." (There's more, including limitations, and we encourage anyone who makes a fair use judgment to read the document themselves.) The Electronic Frontier Foundation, which does litigation on fair use issues, has declared these uses a clear example of fair use.
These videos have been taken down, however, at the request of the copyright holder, Constantin Film. Martin Moszkowicz, Constantin's head of film production, told the Hollywood Reporter "Sometimes we have been asked to take certain ones down -- by companies whose products have been ridiculed or from Jewish associations who were offended by certain neo-Nazi parodies using 'Downfall' footage[...] But we don't want to be the judge of what's good or bad taste. We just see this as a simple case of unauthorized use of our copyright-protected material."
Corynne McSherry, Senior Staff Attorney for EFF, said, “It’s unfortunate that you have a system for automated takedowns in Content ID [the system YouTube uses to spot copyrighted material]. There’s no reason to believe that Constantin Films even ever looked at these films. What EFF has been worried about since content ID was put into place—that it could become an easy tool for Internet censorship—has played out here.”
In response to the outrcy over these takedowns, YouTube has reminded its users of their stance on fair use rights, saying "Content ID has helped create an entirely new economic model for rights holders. We are committed to supporting new forms of original creativity, protecting fair use, and providing a seamless user experience -- all while we help rights owners easily manage their content on YouTube." YouTube's owner, Google, has been an enthusiastic, and sometimes controversial, supporter of fair use. YouTube earlier funded a film on the Code of Best Practices in Fair Use for Online Video. Our goal in creating the Code has been to empower media creators to make fair use judgments for themselves, and express their rights to fair use instead of shying away from repurposing material for fear of copyright holders. This is a clear example of the need for fair use education.
Steve Anderson, the Principle Investigator at Critical Commons had this to say:
I found the latest round of Downfall takedowns to be unfortunate and poorly timed on the part of Constantin Films, which is now being subjected to disproportionate resentment and vilification. I'm not saying they shouldn't be criticized, but there are many other much worse offenders among the copyright industries' takedown trolls and it's toward them that our real outrage should be directed. The shock-and-awe strategies that have been favored by members of the MPAA and RIAA for the past decade have had an impact on some people's behavior and it has instilled fear and paranoia in many others. But, like military shock-and-awe campaigns, it's short-sighted and ultimately counter-productive. The longer-term impact of such mass takedowns is organized resistance and legal efforts that will ultimately have a greater cost to the media industries than a mere public relations nightmare. Creators, students, educators, vidders (etc.) have unprecedented resources and support at their disposal in the form of the CSM's Best Practices guides and a growing body of court decisions supporting fair use. Indiscriminate takedowns that ignore the legitimate protections of fair use are just as illegal as commercial piracy and it's time for the industries to start being held accountable for their actions.
We hope that the Hitler meme resurfaces on YouTube, as the remixers assert their rights. Many are on YouTube now, and we don't know why. Neither do the EFF attorneys. We hope they're up because the makers successfully filed disputes with YouTube (a pretty easy process that doesn't take long.) A brilliant video by EFF chairman Brad Templeton has been created to comment on the takedowns. This video, which Templeton released independently, features Hitler as an irrational and shortsighted copyright owner.
UPDATE: The Hitler meme is resurfacing on YouTube, as the remixers assert their rights and dispute Google's removals (Google makes this easy). Rocketboom has made a delightful video that shows you how, and why you should:
Among the Downfall videos now on YouTube is a brilliant little item by EFF chairman Brad Templeton has been created to comment on the takedowns. This video, which Templeton released independently, features Hitler as an irrational and shortsighted copyright owner.