Intellectual Property

First They Came For Hitler…

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If you issue takedown orders, you're exactly the same as Hitler.

The thousand-year reich of Downfall parodies has ended in ruins. Constantin Films, the German producer of the 2004 film Der Untergang, has compelled YouTube to start taking down the popular Hitler-rants-about-funny-thing-X clips.

If you're unfamiliar with these parodies, first, welcome back from the Russian front. Der Untergang (known to Americans—and in fact widely known to Americans, solely thanks to the parodies—as Downfall), features a scene in which a bunker-trapped Hitler harangues his inner circle (in German) as the Russians close in on Berlin. A few years ago, some inspired genius put on new subtitles in which the Führer ranted about getting banned from Xbox Live rather than about the 11th-hour desertion of his generals. Because Hitler has been bringing the laughs at least since the Beer Hall Putsch, the result was pretty funny, and it spawned a vast genre in which, simply through subtitle changes, Hitler rants about Jay's replacing Conan, Hitler can't get Miley Cyrus tickets, Hitler's pissed off about getting bad seats for a Bruce Springsteen concert, etc. There's even one where the dictator is mad about all the people making Downfall parodies, which you can still see:

I've always suspected the appeal of Downfall parodies rests in the charisma of the great Bruno Ganz, whose rant never loses its effect no matter how many sets of subtitles you've read. In any event, the massive popularity of the meme was not enough to stop YouTube's overly cautious response to copyright challenges. Open Video Alliance reports:

A recent wave of takedowns affecting many of the Hitler "Downfall" parody videos has resulted in their removal from YouTube. (EDIT: These videos were blocked by YouTube's Content ID system, not taken down via DMCA notices. For more on the difference between these two, see the EFF's Guide to YouTube Removals.) The copyright claim is being filed on behalf of Constantin Films, the German production company that owns the rights to the 2004 film…from which the clip originates.

Downfall parodies are a well-established part of online culture… The Downfall format has been used to mock everything from social networking sites, to politicians, to the iPad, to self-important hipsters. The list goes on, but as of this week Downfall videos are disappearing fast.

Indeed they are. The 4.3 million-view original, in which Hitler gets banned from Xbox Live, has been replaced by the notice: "This video contains content from Constantin Film, who has blocked it on copyright grounds." A quick search of YouTube shows that many others have vanished.

The legal merits of Constantin's argument are clear: They do not exist. Downfall parodies take less than four minutes of a 156-minute film, and use them in a way that is unquestionably transformative. Maybe Moturk49 was somehow making a ton of money from his or her Xbox-related parody, but it seems unlikely. In any event, the Supreme Court's 1994 decision in the "Hairy Woman" lawsuit established that the commercial nature of a parody does not render it presumptively unfair, and that a sufficient parodic purpose offers protection against the charge of copying.

Not that that will matter. The issue is YouTube's kneejerk takedowns. The site is free to do what it likes; nobody will bother going to court over something so ephemeral as a Hitler joke; and though YouTube is obviously the best and most popular forum for any video, it's not like there's some inalienable right to run your content there. Still, the use of immediate takedowns is a blunt instrument that YouTube and its owner Google will, I hope, learn to refine in the future. Meanwhile, brand-new Downfall parodies, including the inevitable Hitler-issues-DMCA-takedowns version, are available elsewhere.

Of course, Constantin films should be overjoyed at the success of the Downfall meme. I don't know that it would even be possible to total up all the views on all the parodies out there, but it is conceivable that thanks to these parodies more Americans are aware of Downfall than of any non-English-language film ever made. And the company really fell into the schmaltz barrel by virtue of the fact that everybody refers to them as "Downfall parodies," so if you're intrigued enough to check out the (well worth seeing) original film, you know what to look for.

Just don't look for it on YouTube.

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  1. I had seen the movie before the youtube parody craze marched its way across the internets. All hail (or heil) me for my ground floor greatness, Untermensch!

    1. Same here, but I saw it even before you! NEENER NEENER

      The production company is retarded to take these down. As Tim intimated, it has undoubtedly caused a lot more people to see the original than otherwise would have.

      1. Fuck both of you, I read Traudl Junge’s book years before they made it into a movie.

        1. Yeah, well, I was laughing at the antics of a genocidal maniac before it was cool.

          As Tim intimated, it has undoubtedly caused a lot more people to see the original than otherwise would have.

          That’s like record labels in the 70s and 80s which refused to allow or outrageously charged for artists to contribute to soundtracks of popular television shows of the time. In place was always some lame cover song, which couldn’t have helped much to move vinyl.

          1. Fuck you both, I traveled back in time and was in the bunker with Hitler and Junge, observing. Beat that, you sack wranglers.

              1. I didn’t say I killed him. I said I observed him, turd burglar.

                1. so you’re saying you had the chance to kill Hitler and you passed it up.

                  1. First of all, muff diver, why would I bother to kill him when he’s going to off himself in a few days anyway? Secondly, I’m a huge anti-Semite so he had that going for him.

                    1. good points.

                    2. I’m a weed in Hitler’s bunker. Get the reference or get out.

                    3. I smoked weed in Hitler’s bunker. the stress level was pretty high.

          2. Oh, please.

            I was friends with Hitler when we were both 6 years old.

            1. You are such a Nazi.

    2. I OWNED a COPY of the movie before it became a viral phenomenon.

    3. I spanked his ass when he was born. That’s right, a-holes! I midwifed Hitler. LOL

      Jess
      http://www.vpn-privacy.us.tc

      1. Another winner for A-Bot or whoever spoofed him.

    4. I read the lord of the rings books before the movies came out….the movies were better.

      1. Well, I refused to read the LOTR books even before you read them, because Paul Simon called them Aryan fairy tales, in, like, 1966. But I did read Harvard Lampoon’s “Bored of The Rings.” Bet you didn’t.

        1. I tried to read it, but couldn’t stop laughing at Dildo’s name.

  2. It’s hard to read the subtitles when you understand the real German anyway, so I guess some of the humor was lost on me.

    1. Agreed. Knowing what he was saying made the Xbox rant, or the law school professor rant, or whatever, less funny.

    2. isn’t that what the “mute” button is for?

  3. This is the first I’ve heard about all of this, but that video was hilarious. Too bad they are going away.

    And I refuse to ever watch the original because the producers are being dicks about it.

    1. Come on. You never would have anyway.

      1. I was actually planning on buying a copy of Downfall so that I could have more legal cover when I made my own Downfall parody, but now Constantin has eliminated the market for DVD sales to parody artists. Talk about shooting yourself in the foot.

  4. Why aren’t there any large scale competitors to youtube?

    1. Same reason there aren’t for Facebook: it’s the place everybody uses, so you will always want to post your video there if you want people to see it. Also, it requires a shit-ton of storage and bandwith.

      1. I have a technical question: Why is it that the nobody, I mean nobody, has invented any way of embedding that is in any way reliable, but YouTube has? Is it just a matter of server power?

        1. Probably more a function of how well the embed code is written, and the way that they link to videos. Much of the unreliable embedding is a result of the embed using a link to a video that no longer works. As you’ve undoubtedly seen, YouTube’s links are like this:

          http://www.youtube.com/watch?v=if27InJBtEI

          The “v=gibberish” is how they are locating the video. It is probably something clever like a hash of the video’s title and allows the video to be reliably found, even if they move it around.

          1. I have the same question as Tim. I deal in the industrial electro-mechanical repair business and the best (sometimes only) way that I can send my customers video is on You Tube. Come on free market, there is money to be made here.

            1. You can send them a .pdf “portfolio” file with a collection of videos, associated documentation, etc.

            2. I use Vimeo. Better quality and less toolishness than YouTube.

          2. The “v=gibberish” is how they are locating the video. It is probably something clever like a hash of the video’s title and allows the video to be reliably found, even if they move it around.

            Yes. That ‘gibberish’ is undoubedtly an encoded string generated as some kind of unchanging ‘id’ for the video. This probably not only allows YouTube to move the video around to other locations, new SAN’s, it probably also allows them to change its compression and even stamp content on top of it– and even rename the real file name of the video itself on the file system- yet still link back to the SAN for its malleable location.

            1. If they ran a hash across the entire original uploaded file, that would make it always identifiable no matter where they moved it. We’ve done similar stuff at my work. Natural keys FTW.

        2. I strongly doubt there’s a technical reason. It could be- but as a career developer in a former life, I don’t buy that no one else has improved or can at least match YoutTube’s embed code. Monkeys, typewriters, etc.

          No, I suspect it’s something else. That if someone made their embed code look too much like YouTube’s, they’re apt to run risk of a ‘look-and-feel’ type lawsuit. You know, like… was it Amazon that started suing other companies over its ‘shopping cart’ “Technology”?

          1. What, has nobody here seen, err, umm, adult entertainment videos on the Internet. It’s pretty easy to stick an embedded video on a web page and make it look a heck of a lot like YouTube.

            1. No daddy. What r adult entertainment videos?

                1. Daddy, I didn’t know mommy was a movie star!

                  1. pwww W:=)

        3. well, my company has. we’re tiny. it’s a matter of desire/use.

      2. That’s what they said about the Third Reich.

    2. there was 2. Google bought YouTube.

    3. Benefits of network externalities. It makes more sense for one site than a dozen. It’s true of a lot of the internet actually.

    4. it’s because Google actually loses money on Youtube. They are starting to reclaim that with all the ads on the videos but up intil a year ago it was costing them between 50-100 million to keep running. They kept it alive because it was a project they believed in and KNEW there would be some way to monetize it.
      We’ll see how the ad streams effect the bottom line. If they do make it profitable or at least break even, I’m sure they’ll be SOMEONE else who comes in to seriously challenge them. (Vimeo is actually already looking more and more like they are vying for that title actually)

  5. Now, if they were ordering YouTube to take down the parodies as a way of generating more press for the movie so they can squeeze out a few more marginal sales, that would be awesomely cynical …

  6. Wait. Isn’t this “fair use”?

    1. Maybe, but that’s irrelevant. Unless they have some contract with uploaders that states otherwise, they can take down content for any reason they like. It’s their site.

      That said, I think doing so would have threaten their safe harbor status, so their actions would probably have to be justified in copyright terms.

  7. I don’t understand why the distributor just doesn’t ask youtube to slap ads on them. They could split the revenues and possibly one day earn a considerable amount of money.

    1. A lot of copyright holders do this. That’s why the “Buy this on iTunes” bar keeps coming up whenever you watch a music video.

  8. nobody will bother going to court over something so ephemeral as a Hitler joke

    Perhaps not; but I *am* requesting that Senator Schumer draft appropriate legislation …

    Seriously, a sad turn of events. Some of those parodies were truly side-splittingly hilarious.

  9. The director of Downfall loes the parodies:

    http://nymag.com/daily/enterta…..on_al.html

  10. Tim, you don’t know copyright law nearly well enough to decide whether Constantin has a case here.

    1. To claim fair use under the parody exception, you need to be parodying the work itself, not using the work to make fun of something else. So the SCOTUS decision you reference is inapplicable to this case.

    2. Just because you don’t make a profit from infringing a copyright doesn’t make it automatically fair use. It probably would make it more likely to be fair use, but there has to be some other rationale supporting fair use in addition.

    3. The proportion of the work copied is another factor that is not necessarily indicative of fair use. In Harper & Row v. Nation Enterprises (1985) the Court held that copyright was infringed by copying 400 words out of a 500 page book. And four minutes is pretty long in movie time.

    1. 1. Are you claiming this is parody is not about the content of the movie? That makes no sense. Beyond that, parody protection has expanded in the lower courts since Acuff, as in Suntrust v. Houghton Mifflin.

      2. There are numerous additional rationales for supporting fair use in this case: Among other things, the parodies comment on and provide an implicit critique of the material in the movie.

      3. This case was about rights to quote from an unpublished work. Downfall came out six years ago. To the extent Harper & Row involved length-of-quotation, it works against your argument, because the issue wasn’t how extensive the quote was relative to the entire book, but about Harper’s agreement to allow Time to excerpt it, and whether The Nation had the right to use that same never-published material. Finally, Harper had a legitimate claim to material loss in that case, because Time withdrew from its agreement as a result.

      1. “The legal merits of Constantin’s argument are clear: They do not exist.” The only ‘argument’ from Constantin that you actually mention is that the copyright to the intellectual property belongs to them. As far as I know, that’s not in dispute. So the legal merits of Constantin’s argument are indeed clear, and they do exist. Indeed, if their argument is simply that this is their copyright, it seems unassailable. You go on to suggest that there is a rationale for fair use, and you make a case, but Tulpa’s arguments seem to me to be more persuasive. If I were to place a bet on how this would play out in court, I’d put my money on Constantin.

      2. Tim, it pains me to say this, but Tulpa is correct in this instance. That is not to say that a parody argument can’t be made – but copyright law is far too slippery and flexible in this area for anyone to make a definitive conclusion that it is protected fair use one way or the other.

        Some of the Hitler parodies target the movie, some target Constantin’s decision to issue takedown agreements (which is still DIFFERENT than targeting the subject of the movie itself), and some target completely different subject matter and simply uses the Hitler clip as a backdrop. Courts would likely analyse each case differently, depending on the content of the subtitles.

        If you read as many fair use cases as I have, you would come to realize that many courts do not find fair use in the case of “implicit” criticism of the original underlying work. Rather, the criticism must be overt and directly aimed at the original work.

        Take a look at the Dr. Suess v. Penguin Books case for an example of how the “parody” defense is far narrower than you suggest it is –

        http://www.law.umkc.edu/facult…..Seuss.html

        The Dr. Suess case remains valid law – and specifically references the Acuff decision in its holding, which you mistakenly suggest has actually “expanded” parody protection. (It did no such thing – it merely muddled the law in this area even further.)

        If there was no parody defense in that instance, then it is fair for Tulpa to point out that you are on very shaky ground when you suggest that Constantin has no case whatsoever.

        Now, like you, I would agree that the Dr. Seuss case was wrongly decided and makes for horrible policy.

        See: http://grove.ufl.edu/~techlaw/…..llado.html

        I would also love to see the Hitler videos remain up. But none of this changes the reality of how courts currently operate with respect to our overly restrictive copyright regime. Personal policy preferences are not a substitute for objective legal analysis.

        The “proportion of the work copied” analysis is also too flexible and malleable to be of practical use. You can point to several cases which both support and crush your argument – and even then, the “proportion” issue is only one of several that a court will use to render its final ad hoc determination on whether or not something is “fair use”. One of the problems in this area is that no court has ever established guidelines for determining the scope of what an original work is.

        For instance, lets say I use an unauthorized image of Darth Vader in such a way that draws the ire of Lucasfilm/20th Century Fox, etc. They will claim that the Vader photo is a single copyrighted work, and that my use of it incorporates the entire work by using the entire image. I could have just used a close-up cropped image of his face, but instead, I used the entire photograph, complete with his body, light saber and Death Star construction in the background.

        In response, I claim that the image I am using is actually a single frame taken form the Star Wars movie. As a result, I am using only a portion equal to 1/172860th of the copyrighted work (calculating 24 image frames per second in motion pictures, multiplied by the 2hr and 1 min. running time of the complete film) – an infinitesimal amount. (Or in legal speak, a “de minimus” amount.)

        So who is right here? Am I using 100% of a copyrighted image of Darth Vader? Or am I using only 1/172860th of a portion of the copyrighted Star Wars film? The answer is: Both arguments are “right” – but in the end it doesn’t matter, since a court will define a larger complete “work” however it wants to in order to suit the subjectively-made decision it wants to reach.

        Another popular example demonstrating how irrational this analysis is can be found with Lord of the Rings. As most people know, Tolkein wrote the book as one complete work containing over 1,000 pages. The original publisher scoffed at releasing a book that big, so it asked Tolkein to arbitrarily cut it into 3 separate works (Fellowship of the Ring, Two Towers and Lord of the Rings). As a result, movie companies years later had to negotiate the license rights to 3 different works (even though it was only conceived and produced as one single work to begin with).

        The ultimate problem with your erroneous proclamation that Constantin has no case is that it shifts the focus away from the real culprit here. Constantin ultimately isn’t to blame. If they cave to social pressure, this same problem will simply crop up again in a different context in the near future.

        Instead, the problem is our flawed copyright laws which are in dire need of reform towards a more expansive and clear definition of fair use. However, that is a more involved argument and a much longer political battle. As a result, people are finding it easier simply to point the finger at Constantin. By doing so (as you have), I respectfully submit that you are taking your eyes off the real problem which needs to be solved here – one which could use voices such as yours.

        It is a moral outrage that these Hitler videos are being taken down. But the outrage stems from our current copyright system, not Constantin’s use of it.

        I wholeheartedly join you in your quest to get these videos restored online. But with all of that said, Tulpa is correct as far as an objective analysis of the law goes. Your bald assertion that Constantin has no merit to its legal argument is simply wrong. Maybe a fair use defense would prevail – but maybe not. Maybe some Hitler videos would be protected, while other would not be (in part depending on what the substance of the subtitles in each video are and what they target exactly).

        I know that you want to wrap your personal (and admirable) policy preferences in legal arguments, but don’t allow yourself to confuse the two. If you step back a moment, read a broader section of case law on this issue, and really re-examine what Tulpa is driving at here, you would have to conclude that he has a valid point and that your analysis of Constantin’s legal case was more hyperbole than substance.

        Now that I’ve finally finished this screed – LET’S GET THOSE DAMN HITLER VIDEOS BACK UP!!!! KEEP UP THE GOOD FIGHT!!!!

  11. Man, what a fucking tragedy. The downfall parodies are one of the greatest internet viral memes of all time.

    This is also a bit like Coke barring people from owning Coke kitsch. What better fucking advertising for the original film could there be?

    1. It would be rational for them just to let the Downfalls be, but moviemakers tend to be irrationally sensitive about how their product is used. Remember when those studios sued to keep companies from producing “censored” copies of their movies (even though they bought a copy of the full movie for every Bowdlerized DVD they shipped).

    2. Incidentally, my personal favorite hitler parody is still up.

      Hippies Storm Hitler’s Burningman

        1. Hitler was a vegetarian.

          Bad parody… bad bad bad.

  12. Kind of a rotten thing to do to old Hitler. And on his birthday, of all days…

  13. Let’s cheer him up. I’ll bake a cake.

  14. “more Americans are aware of Downfall than of any non-English-language film ever made”

    How about a non English language film that grossed $370 million in the U.S.?

    http://boxofficemojo.com/movies/?id=passionofthechrist.htm

    1. I was thinking “Pan’s Labyrinth”, but that works too.

  15. Everybody lighten up…..they are parodies and damn good ones at that. Watch and enjoy or don’t watch, it is up to you.

  16. ROTFL, the funny or die parody of his own meme status downfall is amazingly funny.

    Lou
    http://www.ultimate-privacy.at.tc

  17. I rented Downfall after seeing one of those parodies. You guys, it was very different.

    1. They are still sensitive about Hitler portrayals. German television purchased the Faulty Towers series but they omitted the Basil Fawlty Nazi/concussion episode

      1. That’s cause they mentioned the war.

        1. But you started it!

      2. That’s the best episode!

      3. And yet, re-runs of Hogan’s Heroes are a big hit there.

    2. LOL +1 for Treacher and his busted leg.

    3. I’ve been trying to figure out what movie they are from since it looks like a great movie. This is not how I wanted to find out the name.

  18. Be a shame if Constantin Films suffered a DOS attack.

  19. First!!! Oh wait… Sorry. Carry on.

    1. …wait, I fucked it up for you;-)

  20. I can’t believe I’m the first one to say this but… Those guys at Constantin Films are a bunch of nazis, man.

    (i’ll be here all night, thank you)

    1. You’re not the first to say it. Hitler said it in the parody.

  21. The absolute best one was Hitler/Hillary rants about Obama.

    “I will fuck you all in half!”

  22. And “Hillary’s Downfall” is still available through non-Youtube source:

    http://www.funnyordie.com/vide…..mesadomian

  23. it’s not like there’s some inalienable right to run your content there

    Or that belonging to someone else.

  24. Am I the only one who thinks the Downfall parodies aren’t that funny?

    That, and the Lolcats crap.

    1. The first one is great the first and second time you watch it.

      Successive viewings are awful.

  25. This is so shortsighted of them. I rented Downfall through Netflix after having seen the original parody and having been impressed with Ganz’ acting. It’s a pretty good movie.

    Ultimately as with the music industry, their tightening their grasp on their IP causes dollars (Euros/Deutsche Marks) to slip through their fingers.

  26. “Ultimately as with the music industry, their tightening their grasp on their IP causes dollars (Euros/Deutsche Marks) to slip through their fingers.”

    That’s a different movie. And it was star systems. And Leia was hot.

  27. Hitler as a Cowboys fan is still up..I love the part where he complains he will never get to wear his TO jersey.

    http://www.youtube.com/watch?v=UOqlH4YZBkM

  28. This sucks. But if I remember IP correctly, Copyright Law allows parodies (making fun of the source material), but not satire (making fun of something else, e.g., Xboxs, iPads, &c.). These videos definitely seem to be satire.

  29. I think they’re both. They are parodies of the source material but satire of some other topic.

  30. Here is a great new one – a parody of Constantin taking the videos down. Great line about Google being like the British in 1937:

    http://www.youtube.com/watch?v=kBO5dh9qrIQ

  31. I’ve always suspected the appeal of Downfall parodies rests in the charisma of the great Bruno Ganz, whose rant never loses its effect no matter how many sets of subtitles you’ve read.

    If that’s the case, then these aren’t really parodies so much as a way getting his performance for free in service of whatever message they want. And that does seem like a rip-off.

    I learned about these only a couple of months ago via Dave Cisar’s now taken-down version wherein Hitler’s youth football team was beaten by a team using Dave Cisar’s single wing offense. It’s the only version of the video I’ve seen so far that makes use of the gesture of pointing to the map — the single wing team was from the place being pointed to. Jhanawa made his own version in cx with the KC Colts youth team, which is still up but not as good.

  32. But this all evades the real question: Why did Blizzard decide not to include LAN play in StarCraft 2?

  33. Real Hitler Finds Out YouTube Is Removing The Hitler “Downfall” Parodies – http://bit.ly/c5mca3

  34. Surely it is fair use!? As it’s a parody

  35. Tim, while you point to my video of “Hitler tries to do a DMCA takedown” as a newly generated video in response to this, in fact it was done a year ago, in response to their first wave of takedowns (which used the DMCA) and was taken down on the 20th in their second wave (which used Youtube content ID fingerprinting.)

    With some irony, my video a year ago has Hitler (or rather the producer of the film) annoyed when his lawyers tell them they can’t do DMCA takedowns willy-nilly. In the end he softens and realizes he can use the Youtube fingerprinting.

    A year later, that’s what they did, to take down this an most other videos.

    http://ideas.4brad.com/studio-…..-takedowns

    has details

  36. OH btw, for those looking for legal basis to fight JewTube (they truly earned the term with this sorry ass episode), you can research Marsh vs Alabama, which established that individuals still have their Constitutional rights to free speech when in a company town or other entirely company owned community. This ruling was later tempered by the AOL ruling, but that later ruling only applies to restricting commercial speech (in the AOL case, spam email) which has lesser first amendment protection than parody and other fair use or political speech.

    1. “JewTube (they truly earned the term”

      Selene, are you mentally freaking ill?

  37. Tim, it pains me to say this, but Tulpa is correct in this instance. That is not to say that a parody argument can’t be made – but copyright law is far too slippery and flexible in this area for anyone to make a definitive conclusion that it is protected fair use one way or the other.

    Some of the Hitler parodies target the movie, some target Constantin’s decision to issue takedown agreements (which is still DIFFERENT than targeting the subject of the movie itself), and some target completely different subject matter and simply uses the Hitler clip as a backdrop. Courts would likely analyse each case differently, depending on the content of the subtitles.

    If you read as many fair use cases as I have, you would come to realize that many courts do not find fair use in the case of “implicit” criticism of the original underlying work. Rather, the criticism must be overt and directly aimed at the original work.

    Take a look at the Dr. Suess v. Penguin Books case for an example of how the “parody” defense is far narrower than you suggest it is –

    [Links deleted to avoid your spam filter. Google the case name and read the full text of the decision.]

    The Dr. Suess case remains valid law – and specifically references the Acuff decision in its holding, which you mistakenly suggest has actually “expanded” parody protection. (It did no such thing – it merely muddled the law in this area even further.)

    If there was no parody defense in that instance, then it is fair for Tulpa to point out that you are on very shaky ground when you suggest that Constantin has no case whatsoever.

    Now, like you, I would agree that the Dr. Seuss case was wrongly decided and makes for horrible policy.

    See: http://grove.ufl.edu/~techlaw/…..llado.html

    I would also love to see the Hitler videos remain up. But none of this changes the reality of how courts currently operate with respect to our overly restrictive copyright regime. Personal policy preferences are not a substitute for objective legal analysis.

    The “proportion of the work copied” analysis is also too flexible and malleable to be of practical use. You can point to several cases which both support and crush your argument – and even then, the “proportion” issue is only one of several that a court will use to render its final ad hoc determination on whether or not something is “fair use”. One of the problems in this area is that no court has ever established guidelines for determining the scope of what an original work is.

    For instance, lets say I use an unauthorized image of Darth Vader in such a way that draws the ire of Lucasfilm/20th Century Fox, etc. They will claim that the Vader photo is a single copyrighted work, and that my use of it incorporates the entire work by using the entire image. I could have just used a close-up cropped image of his face, but instead, I used the entire photograph, complete with his body, light saber and Death Star construction in the background.

    In response, I claim that the image I am using is actually a single frame taken form the Star Wars movie. As a result, I am using only a portion equal to 1/172860th of the copyrighted work (calculating 24 image frames per second in motion pictures, multiplied by the 2hr and 1 min. running time of the complete film) – an infinitesimal amount. (Or in legal speak, a “de minimus” amount.)

    So who is right here? Am I using 100% of a copyrighted image of Darth Vader? Or am I using only 1/172860th of a portion of the copyrighted Star Wars film? The answer is: Both arguments are “right” – but in the end it doesn’t matter, since a court will define a larger complete “work” however it wants to in order to suit the subjectively-made decision it wants to reach.

    Another popular example demonstrating how irrational this analysis is can be found with Lord of the Rings. As most people know, Tolkein wrote the book as one complete work containing over 1,000 pages. The original publisher scoffed at releasing a book that big, so it asked Tolkein to arbitrarily cut it into 3 separate works (Fellowship of the Ring, Two Towers and Lord of the Rings). As a result, movie companies years later had to negotiate the license rights to 3 different works (even though it was only conceived and produced as one single work to begin with).

    The ultimate problem with your erroneous proclamation that Constantin has no case is that it shifts the focus away from the real culprit here. Constantin ultimately isn’t to blame. If they cave to social pressure, this same problem will simply crop up again in a different context in the near future.

    Instead, the problem is our flawed copyright laws which are in dire need of reform towards a more expansive and clear definition of fair use. However, that is a more involved argument and a much longer political battle. As a result, people are finding it easier simply to point the finger at Constantin. By doing so (as you have), I respectfully submit that you are taking your eyes off the real problem which needs to be solved here – one which could use voices such as yours.

    It is a moral outrage that these Hitler videos are being taken down. But the outrage stems from our current copyright system, not Constantin’s use of it.

    I wholeheartedly join you in your quest to get these videos restored online. But with all of that said, Tulpa is correct as far as an objective analysis of the law goes. Your bald assertion that Constantin has no merit to its legal argument is simply wrong. Maybe a fair use defense would prevail – but maybe not. Maybe some Hitler videos would be protected, while other would not be (in part depending on what the substance of the subtitles in each video are and what they target exactly).

    I know that you want to wrap your personal (and admirable) policy preferences in legal arguments, but don’t allow yourself to confuse the two. If you step back a moment, read a broader section of case law on this issue, and really re-examine what Tulpa is driving at here, you would have to conclude that he has a valid point and that your analysis of Constantin’s legal case was more hyperbole than substance.

    Now that I’ve finally finished this screed – LET’S GET THOSE DAMN HITLER VIDEOS BACK UP!!!! KEEP UP THE GOOD FIGHT!!!!

  38. When you write that the claim has no legal merits, you seem to assume that the possible legal claim would be filed in the US. However, it should be noted that Google is no stranger in German courtrooms:

    http://newteevee.com/2009/10/2…..n-germany/

    The European copyright law in generally differs from the US law. There is much less ‘fair use’ and in generally the safest ‘fair use’ is to use the works unchanged as part of a journalistic work.

    1. So, Constantin seems likely to defend its rights to a movie about Hitler in a German court? Hang on whilst I make some popcorn.

  39. I think you are wrong, in most cases there are not parodies. A parody needs to critique the original work, this is not the case in most of the Downfall videos. It is true that they only use a small portion, but it is not “unquestionably” transformative. I don’t know is merely putting different subtitles renders this “unquestionably” transformative.

  40. Gotta hand it to you on the title slug. w00t!

  41. How about an award for best Downfall parody?

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