Hitler tries a DMCA takedown

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

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.)

YouTube's government entanglement and removing videos

This is a phenomenal clip. Well done!

There is one point in your blog post that I'd like to contest though. And I might be the only person on the planet to think this way. But you wrote:

"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."

I'm not sure that is the case--or at least I'm not sure that is ALWAYS the case. YouTube has turned itself into a quasi-governmental agency. It is the only place on the internet where Congressional officials have asked us for feedback in video format. Suppose--just suppose, someone made a video as a response to a Senator's request for feedback. Would YouTube have the absolute right to take down your video for any reason whatsoever? Would it make a difference if it was making obvious fair use of the Hitler meme in making that point?

I discuss my main point that YouTube has become a quasi-governmental agency in more detail on my website.

http://www.themaskedanalyst.com/VideoTranscripts/Must%20YouTube%20Restor...

As a public forum

I would take a different tack. I think the government has a responsibility to be open to all lawful inputs, and as such, it is their duty, in picking a contractor who will handle such videos and feedback, to pick one who would not censor. They should have a contract with the provider.

I meant that YouTube is free, in its own general site, to host only what it wants to host. This doesn’t mean it is inappropriate for us to criticise them if they take down videos for bad reasons — we should. It’s just that we can force them to host videos without their agreement. This is a fundamental part of freedom of the press. The law is not allowed to tell the press what not to print, nor can it tell them what they must print. This doctrine is called “compelled speech.” If a site is acting for the government of course, then it is a contractor and can be told what to do. While YouTube has market dominance there is no monopoly here.

Google - a "Private Company?"

The last time I knew, Google was publicly owned - people can purchase stocks.

"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."

You said this elsewhere and it was wrong there too

I think it was, what, ArsTechnica? You tried the same "BUY STOCKS = PUBLIC HURRRR" thing there, and it was pointed out that "private company" is being used in the sense of "YouTube is not the government", not "you can't buy stock".

Takedown Shakedown

Hi Brad,

Nice article (and video) on the Hitler Meme -- who knew it'd have this much steam?

I did try to repost Hitler is a Meme a few times, but the uploads were insta-banned. I realized immediately they had implemented some sort of digital fingerprinting. I thought of ways to workaround the restrictive technology -- distorting the video at points, adding a subtle layer of white noise on top of the original dialogue, etc. -- but life got in the way. My wife developed complications with her second pregnancy and ended up delivering our son ~2 months early.

Late night feedings trumped new quips about Facebook or Twitter.

I remain impressed by your methodologies. The quality of the video is superb, and you make some salient points. Perhaps as my little one learns to sleep through the night, I may consider fighting the good fight (appreciate your comment on my blog). The takedown likely cost me one million views. That's got to be worth at least 100 angel bucks.

-- SEAN O

Indeed

Thanks for the note on the fingerprinting. I can see how they would do this to stop re-uploads of what they ban. This is different from the system that generally blocks any video matching generic copyright holder provided fingerprints, I presume, but perhaps not that different.

You should have gotten a notice of your takedown — if you did, you should send a copy to our Chilling Effects project — and the right to file a counter-notice. After you filed the counter notice, YouTube should then have put the video back up. Then Constantin would have had to decide if it wants to sue you or not. It would be foolish of them to do so, but I can see how you might not want to even deal with the hassle.

My video looks good, but not nearly as good as it would be if I had just been able to rip the DVD, or better yet, the Blu-Ray. I could have gotten a high quality analog rip if I had gotten the Blu-Ray, a player, and one of the new capture cards that does 720p video from analog component video cables. They are coming down in price, but I don’t yet have one. It’s not strictly needed to make the comedic point, but it is of interest in the analog hole debate.

Fantastic

This is a really amazing iteration of the meme. I love the careful attention to the audio, like EFF for SS and Stallman for Stalin.

It's sick that it's so complicated (and for most users, a practical impossibility) to legally create one of these.

Communication

Really well done - and great to read about how you did it, too!

I think one of the important ways to communicate about these kinds of issues is that manner that you've done: taking a copyrighted work and making a fair use parody to communicate about the right to make fair use parodies of copyrighted works.

In particular, many people (I think) fail to conceptually see the connection between "use" (free of permission) and the creation of new works -- what you did both tells a story about that concept, and makes it more visceral.

very nice article, but...

Hey!

Very nice article, very very nice idea and I love the video!

Now, at the end of your post there is something that disturbs me:
I have to dissaprove the whole "The Movie" Paragraph about hitler not being a heartless demon without soul (and surely with horns on his forehead).

Sure Hitler was a very bad guy and so on but the common believe that such persons can't have good sides (like care for his dog and wife and so on) is just nonsense.
I don't want to sympathise with his ideas, methods or cruelty but there is also the other side:
"“Those are the good guys dropping the bombs, the people dying are the worst guys”"
Sure very much people in his regime were bad guys or at least shown her "dark side".
But also there were so much people in this "führerbunker" (and the city, the whole land) that simply were there, were good people who died. How can you say that these people were "the worst guys" (for example the secretary protagonist).
As you are, I suppose, a person with common sense and the ability do differencieate not only good from evil but the grey shades of illegal action (as you do by trying to keep the DMCA at bay) I thought that you may have a "better" view on this whole scenario.

In your defense this article was nothing about what I wrote here and maybe you just didn't have the time or whatever to discuss this matter, but I wanted to write this off my soul.

I was simply reporting

Why the movie was controversial. Many people do not like seeing Hitler or Goebbels or the others with any humanity. We don’t like thinking that a human being could have done what they did. For those who were victims of Hitler, they don’t like seeing the destroyer as human either. But he obviously was. In fact, he obviously was quite charming and charismatic, at least at the start, and this doesn’t show in the movie at all.

Apple should have denied

Apple should have denied your app, simply from poor taste and unoriginality of doing another downfall parody. Do we really need 10 million of these? If you enjoyed working on it, fine, keep it to yourself.

App and video unconnected

The whole point is that the App (which was written by a 3rd party company) and the video (which happened to be linked to in the feed the day they tried the App) are entirely unconnected. The App is just an RSS reader pre-programmed to display EFF news from the EFF rss feed. It had this video in it. If you don’t like the video or other Downfall vids, you don’t need to watch this one. If you have followed copyright battles, then you may want to, as it’s aimed at you.

DMClol

http://img40.imageshack.us/my.php?image=dafumca.png

the second video included into the article just got DMCA'd out of youtube... LOL

seems youtomb got it: http://youtomb.mit.edu/search?q=Constantin+Film+Produktion+GmbH

There must be something wrong!

I'm a little behind the times so this is the first time I've seen a parody using that clip. After watching it, I was compelled to actually seek out DOWNFALL. Surely, this can't be! Unauthorized clips do nothing but *hurt* films!

Does. Not. Compute....

Does. Not. Commnahhaeofhrrrrrrrrrr

Daiiiiissyyyy Daiiiiissssyyyy giivvve meee yourrrrr annnssswweeerrrr doooooooooo......

;)

Nice work, Brad. I can't wait to actually see the real film, now!

Downfall

It is a great movie, and it was the parodies that pushed me to finally see it.

me too

Agreed, me too!

Very well done with the subtitles, Brad!

I would like to have a

I would like to have a server for my new video site, please. Youtube has gone into disarray ever since those corporate blood clots took over.

In fact, the YT staff themselves are worse than Hitler and his ill ideologies. Corporate greed and too much lobbying against comedians who only want a quick laugh or two are the reasons why America is into a sticky situation. We're just here to cheer ourselves up just as Shirley Temple entertained families 70 years ago, not piss each other off with a truckload of lawsuits!

Please offer free format, downloadable version

I absolutely LOVE this video. Great work, Brad! I'd like to point others to it, but all my friends know how I lament youtube's requirement of non-free (as in freedom) Flash. If possible, I'd love to point people to a downloadable/free-format version of the movie. Is one available anywhere?

Don't eat all my bandwidth

But a version can be found at http://www.templetons.com/files/hitler-takedown.avi

Downfall parody

lol. Love your version.

I had done one of these myself after a series of flagging, votebotting and DMCAs on mnay of the YouTube pro-science channels. (Of note: mine was up a week before yours)

http://www.youtube.com/watch?v=4QDC1KNavbE

Enjoy

DJ

Unedited clip

Does anyone know if this clip is available somewhere without any subtitles? I'd like to download my own copy and create my own parody. I'm trying to do this for a presentation for a work friend who is leaving suddenly and so I don't have time to order the movie and get it here on time for that.

Any pointers would be appreciated.
Thanks.
C.

Clip has been DMCA'd

Clicking on your parody clip reveals the message "This video contains content from Constantin Film, who has blocked it on copyright grounds." Time to file a counter-notice!

Yes, it does appear down

I was confused at first, because I still see the clip when logged into my youtube account, but others don’t. They must let the uploader see the clip after removal, but there is as yet no way for me to file a counternotice.

Not sure yet, but this may not be a DMCA takedown, but rather Youtube’s “fingerprinting” service where the studio provides clips and YouTube blocks anything that matches them, which of course also includes blocking fair use parodies.

Sue Youtube?

It would seem that in removing these Fair Use videos without receiving a formal takedown notice, You Tube is exercising editorial discretion in the videos it publishes (or at least allowing the likes Constantin to do so on their behalf). Would this be grounds for YouTube to lose their Safe Harbor status?

I don't really want this to happen to You Tube - I think they offer a great service, which they clearly couldn't offer without Safe Harbor - but on the other hand, I think this clearly shows that their fingerprinting system goes well beyond simply preventing the illicit uploading of copyrighted works.

SafeHarbor is going away, anyway

Recent copyright cases have decided that it's incumbent on the provider to show that they had no knowledge of the infringement. And there's a libel suit in the UK where the defendant's motion to dismiss under Safe Harbor was rejected.

Which is actually okay with me. Safe Harbor has been used as a "get out of jail free card" for too long, by bloggers who like the traffic from flamewars but want to pretend they're more than just a Limbaugh imitation. "Oh, you can't blame ME for all these horrible racist things, it's just THE COMMENTORS, and my policy CLEARLY states that I'm not responsible for the content!"

> Safe Harbor has been used

> Safe Harbor has been used as a "get out of jail free card" for too long, by bloggers who like the traffic from flamewars but want to pretend they're more than just a Limbaugh imitation.

How many annoying bloggers are the Wikipedias worth?

Time for a parody on you-tube non-dcma removal

Would you do one on you-tube losing its war on takedown without notice, and post a sample counter notice with instructions and the same for a non-dcma youtube dispute

What a lovely video and an

What a lovely video and an interesting alternative -

I enjoyed it lot.you deserve a bigger audience.well done


Thank you for your brilliant explanation of creating and posting

I had no idea how the clips were created for YouTube so it was brilliant to have such a comprehensive rundown of what you had to go through in order to make your Hilter DMCA clip and keep it on YouTube.

Thanks for enlightening me and others who need to know this stuff is going on.

Criminalized?

I was sent a pile of copyright notices for a short Hitler parody video I made. It has almost no views, because all it contains is my friends' in-jokes.

The wording of my notices seems to indicate I've done something wrong, and the only way to clear my account's standing is to take down the video. What would you do if you were me?

screenshot of the pile of notices: http://i.imm.io/pyWJ.jpeg

That's a lot of entities

I wonder if they all are legit reps for Constantin Films, the actual creator of the movie?

Maybe, maybe not

Unfortunately, in some countries even a third-party can issue a cease-and-desist notice. This does get abused often in copyright cases. (On the face of it, it is not absurd. If I see someone trying to kill someone else, I can call the police, try to stop the murderer etc even though I am just a third party.) The abuse comes about because people issuing the notices earn money from them (whereas I don't earn money if I call the police).

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