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 F├╝hrer 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.