New Update, April 2010: Yes, even this parody video has been taken down though the YouTube Content-ID takedown system — just as my version of Hitler says he is going to do at the end. I filed a dispute, and it seems that now you can watch it again on YouTube, at least until Constantin responds as well as on Vimeo. I have a new post about the takedown with more details. In addition, YouTube issued an official statement to which I responded.
Unless you’ve been under a rock, you have probably seen a parody clip that puts new subtitles on a scene of Hitler ranting and raving from the 2004 German movie Downfall (Der Untergang). Some of these videos have gathered millions of views, with Hitler complaining about how he’s been banned from X-box live, or nobody wants to go to Burning Man, or his new camera sucks. The phenomenon even rated a New York Times article.
It eventually spawned meta-parodies, where Hitler would rant about how many Hitler videos were out on the internet, or how they sucked. I’ve seen at least 4 of these. Remarkably, one of them, called Hitler is a Meme was pulled from YouTube by the studio, presumably using a DMCA takedown. A few others have also been pulled, though many remain intact. (More on that later.)
Of course, I had to do my own. I hope, even if you’ve seen a score of these, that this one will still give you some laughs. If you are familiar with the issues of DRM, DMCA takedowns, and copyright wars, I can assure you based on the reviews of others that you will enjoy this quite a bit. Of course, as it criticises YouTube as well as the studio, I have put it on YouTube. But somehow I don’t think they would be willing to try a takedown — not on so obvious a fair use as this one, not on the chairman of the most noted legal foundation in the field. But it’s fun to dare them.
(Shortly I may also provide the video in some higher quality locations. I do recommend you click on the “HQ” button if you have bandwidth.)
Making of the Video, Legally
This turned out to be much more work that I expected because I wanted to make sure I played by the rules in generating this video. The easiest thing to do, of course, would have been to download the clip from the net. This should be legal since my purpose is to produce a fair use parody. However, this question has not been fully settled. (Of course, even easier would have been if the studio were willing to let me buy a DRM-free copy.)
So I got a copy of the DVD, and discovered that the U.S. edition of the film has the English subtitles encoded right into the video. Normally subtitles are in their own file and can be turned on and off — but not in this edition.
So I purchased a mail-order copy of the European version of the DVD, which has proper optional subtitles. As you may know, European DVDs come marked “region code 2” and aside from being in the PAL format (which is not a problem for me) a North American (Region 1) DVD player refuses to play them. Region coding is a mechanism to stop people from buying their DVDs from other countries where they might get released at different times or different prices. Some wonder if it’s the true purpose of DVD encryption. PAL DVDs are actually better than NTSC because they have 575 lines instead of 480, and if you have an HDTV it usually can handle this.
Here, the easiest thing to do would have been to digitally rip the clip from the DVD. However, that would require circumventing the encryption. At the EFF, we’re trying to get the law, the copyright office and the courts to understand that you need to be able to circumvent protections sometimes to exercise free speech, but at present there is legal risk to doing this.
One can buy region 2 DVD players. In fact, for a large fraction of commercial DVD players there are codes you can enter on the remote to make them play all regions. However, studios argue this too is a circumvention of their protection systems. The easiest fully legal way to play one in a typical house is to get a PC with a DVD drive. The Windows software DVD players all let you set the region code when you first use them, some let you change it a few times but won’t let you change it after that. I have so many PCs and DVD players that it is no bother to me to set one to region 2, and so I did. It was able to play the video out my display card’s S-video port, and I connected that to my linux box. This box records my cable TV for me, and so it has a fully unlocked video capture card.
Had I tried my standalone DVD-Burner, it probably would have refused even my analog recording. It checks for the Macrovision fingerprint in the analog signal and shuts down on you if it sees it. It is a combination VHS player and DVD recorder which I bought to convert all my old videotapes. It refuses to convert the commercial ones with Macrovision, even when I have permission from the producer of the tape.
The analog recording would have been easier if the North American DVD had worked, as I have a DVD player next to the TV PC, and it would have just meant running a wire. Doing it from the PC meant moving a PC, and trying to control it under a delay (almost impossible.) Thanks, region codes! But at least I could do it. There was some effort by the movie industry to assure that all video capture devices at the consumer level would refuse to capture from a commercial DVD, even via analog — so far that’s been held at bay.
Once I had a copy, I subtitled it using a free Java package called ‘Jubler’ which worked pretty well. Fans who put subtitles onto foreign movies that have not yet been translated have built quite an ecosystem for subtitling. In this case, I also encoded the subtitles directly into the video. While I hated that on the DVD, this is the right step here as I need to control their look and the subtitles are the whole point. Youtube also only has primitive subtitling. So the free linux package ‘avidemux’ allows you to take the subtitle file from Jubler and embed it into the video for uploading.
About Fair Use
The copyright act created the concept of fair use for almost precisely this purpose. If you want to criticise a copyrighted work and its creators, or make fun of them, and this criticism is best done using some of the copyrighted work itself, you are hardly likely to get permission from the rightsholder to do it. So the copyright rules of the USA and many other countries allow you — without permission or payment — to make use of a copyrighted work as part of the criticism. The law judges your purpose, how much of the work you use, what type of work it is, and whether you hurt the commercial market for the work. Here, it’s an easy one. My purpose is to make fun both of the meme the clip has become, and the actions of the studio attempting to shut down such use. It’s not going to make anybody decide they don’t need to see the whole movie, either.
I think the “Hitler is a Meme” video also met these tests well, and it should not have been subject to a DMCA takedown. Had the author wished he could have challenged the takedown. With such a blatant fair use, the producers could also have been punished with damages for abusing the DMCA takedown law in my view.
Now to be fair, my examination of the topic has revealed they have only taken down a small number of the parodies. In particular, the ones they have taken down have contained what you might term as sick jokes. It’s easy to get into the territory of sick humour with Nazi clips. The “Hitler is a Meme” parody had Hitler told that parody clips had received over 6,000,000 views on YouTube. Hitler declares he would like to get rid of all 6 million views. Another clip that got a takedown had Hitler ranting about how it’s impossible to find parking in Tel Aviv. This clip had Hebrew subtitles and was popular in Israel. But as you might expect, some people in Tel Aviv have an understandable reason to find little about Hitler funny. At the word that holocaust survivors were upset at the parody, it got taken down. Other reports tell me that more of the videos have been taken down in other countries where parodies and fair use are not as protected as they are in the USA.
Curiously though, one about the Dallas Cowboys losing has no sick jokes (it’s also not a very funny one) yet got a takedown. According to the good folks at YouTomb they have taken down about 60 videos, almost all of them around 1 year ago, but one as recently as 2 weeks ago — about Flight Simulators. Some may have been taken down for dirty words. For others it is hard to tell. At the same time, the whole movie can be found, with real subtitles, in pieces on YouTube. One video taken down appears to be not theirs at all, but rather that of a comedy duo. (The uploader may or may not have had permission, but there seems no justification for a Constantin-ordered takedown.)
Now, you may sympathize with the studio’s desire not to have their film used in sick jokes. However, the very important point of the Fair Use doctrine is that it should not be up to the studio to decide. Given the power to decide what criticisms and parodies may be made of their works is a sure way to chink away at important aspects of free speech.
The EFF Fair Use Information Page which I mention at the end of the video has more info.
YouTube’s Automatic Takedowns
In addition, Hitler realizes at the end (at this point you should have watched the clip as I am spoiling the jokes) that you can get YouTube to take down videos without a DMCA takedown. They have a system where copyright holders can upload audio and video fingerprints of their material, and YouTube will automatically scan uploaded videos and remove ones that match the fingerprint. Based on the fact that most of the clips are still up on YouTube, they have not done this. YouTube (Google) is a private company offering free web hosting, so it is their right to take down anything for just about any reason, even if they don’t like the colour scheme. Nonetheless, we think that they should follow the principles of Google, their parent company, which tries to only remove material when there is a solid legal reason for doing so. If Constantin films really does try to use this system, they will be quashing a lot of legitimate fair uses and funny parodies with it.
The movie, by the way, is quite good but also quite disturbing. It drew a fair bit of controversy itself, as any movie on this subject (Hitler’s final days) has to portray men like Hitler and those around him as some sort of human being. People didn’t like that, but playing him as pure demon would result in a caricature, not a drama. Oh, he does not come off well — he’s mad, desperate and brutal to the end, but he is also kind to his dog, mistress and secretaries, an anti-smoking vegetarian and all the other contradictions. It is hard during the movie, as the bunker is bombed and people die, to remember, “Those are the good guys dropping the bombs, the people dying are the worst guys” and this in turn is disturbing.
And while I thought I would be unable to watch the real scene with real subtitles without giggles, that did not turn out to be the case. Here is my more complete review of the film.
(Note: The 2nd video clip embedded is an example of a Downfall parody which was pulled down due to a DMCA takedown, to show you what it is like.)
Apple blocks iPhone RSS reader…
(Amazing update: Apple computer blocked a new iPhone App which was to show the EFF Blog, because today, at least, that blog contained a pointer to this video, and the video has a dirty word. Incredible. Time to support EFF and the effort to make iPhone jailbreaking legal.)