In a bizarre twist of life imitating art that may be too “meta” for your brain, Constantin Films, the producer of the war movie “Downfall” has caused the takedown of my video which was put up to criticise their excessive use of takedowns.
Update: YouTube makes an official statement and I respond.
A brief history:
Starting a few years ago, people started taking a clip from Downfall where Hitler goes on a rampage, and adding fake English subtitles to produce parodies on various subjects. Some were very funny and hundreds of different ones were made. Some were even made about how many parodies there were. The German studio, Constantin, did some DCMA takedowns on many of these videos.
So I made, with considerable effort, my own video, which depicted Hitler as a producer at Constantin Films. He hears about all the videos and orders DMCA takdowns. His lawyers (generals) have to explain why you can’t just do that, and he gets angry. I have a blog post about the video, including a description of all the work I had to do to make sure my base video was obtained legally.
Later, when the video showed up on the EFF web site, Apple decided to block an RSS reader from the iPhone app store because it pointed to the video and Hitler says a bad word that shocked the Apple reviewers.
Not to spoil things too much, but the video also makes reference to an alternate way you can get something pulled off YouTube. Studios are able to submit audio and video clips to YouTube which are “fingerprinted.” YouTube then checks all uploaded videos to see if they match the audio or video of some allegedly copyrighted work. When they match, YouTube removes the video. That’s what I have Hitler decide to do instead of more DMCA takedowns, and lo, Constantin actually ordered this, and most, though not all of the Downfall parodies are now gone from YouTube. Including mine.
Now I am sure people will debate the extent to which some of the parodies count as “fair use” under the law. But in my view, my video is about as good an example of a parody fair use as you’re going to see. It uses the clip to criticise the very producers of the clip and the takedown process. The fair use exemption to copyright infringement claims was created, in large part, to assure that copyright holders didn’t use copyright law to censor free speech. If you want to criticise content or a content creator — an important free speech right — often the best way to do that will make use of the content in question. But the lawmakers knew you would rarely get permission to use copyrighted works to make fun of them, and wanted to make sure critical views were not stifled.
We thus see the problem with both the DMCA takedown process and YouTube’s “Content ID” fingerprinting process. It’s a shotgun rather than a scalpel, and censors protected speech in the name of protecting copyrights. YouTube is a private company (and, in the interests of disclosure I have a friendly and business relationship with Google, something I am much prouder of now that they are not censoring in China) and so it has the right to decide what videos will appear on their site for whatever reasons they choose. However, there are still good and bad ways to do this.
YouTube does allow uploaders to file a dispute over a Content ID takedown, and I did file a dispute. Upon filing the dispute, it appears the video became immediately playable (though embedding was disabled until I turned it back on.) The uploader is not told this, however, as the YouTube status page still reports that the “dispute is still awaiting a response from Constantin Films” and that the video is “blocked worldwide.” We will see how long it takes for Constantin to respond. They don’t make the dispute form easy to find, and in fact I got no notice via e-mail that I can see to tell me of the takedown. When I visited the page logged in to YouTube, it still showed me the video even though nobody else could see it, and uploaders have to work to learn that their vids are gone. Due to the dispute filing it appears you can now play the video directly on YouTube. The approach of immediate re-enabling is the right one (though the scattershot takedown itself is more troubling.)
In the meantime, the video is also available on Vimeo which is a competitor to YouTube. And it’s also available in smaller form on my own web server, where they will have a much harder time taking it down. You can also read the EFF Deeplink for other details.