Open Mic

Why The Take-Down of the 'Hitler' Parodies on YouTube was Illegal

Aaron Barnhart Posted April 25, 2010 at 9:43 PM

The German film company which produced "Downfall," the movie about the last days of Adolf Hitler now made famous by a zillion Web parodies, has ordered a DMCA (Digital Media Copyright Act) takedown of all such parody videos from YouTube.

Many observers on the way are reacting as though this is a sad but inevitable development, the next-door neighbor calling the cops to break up the kids' house party, and what can do you do about it, that's the way of the world.

Actually, it's not the way of the world. I have been reporting on fair use in video mashups for some time, and when I heard of the Hitler meme takedown, my first reaction was that the copyright owner had absolutely no cause to take down the video, and that someone should demand that Google reinstate all videos immediately.

But just to be sure, I shot an email to Patricia Aufderheide, the distinguished media critic and director of the Center for Social Media at American University. In 2007, Pat and a blue-ribbon team of intellectual property lawyers issued a breakthrough document called Code of Best Practices for Fair Use in Online Video -- and it addresses exactly the kind of parody that the producer of "Downfall" just ordered taken down.

Or at least that was my first impression. As I say, I asked Pat Aufderheide for her response. It is as follows:

"they can all use fair use and do a counter takedown, without fear, if they choose, and get them all reinstated."

A "counter takedown" is also known as a counter-notification. Google even has a help page on YouTube showing you how to write you, though the tone of the help page is needlessly intimidating and makes it sound like you haven't got a hoot in hell of having your video put back online. That's not true. Read the Center's 2007 mixer/mashup document and you will see that the parodists are right and the film studio is wrong.

So get cracking. And as for the rest of you, surely there's someone creative enough to put up a funny "Hitler Reacts to the Takedown of Hitler Reacts Videos" video.

[EDITOR'S NOTE: Since Aaron first wrote this last week, we're glad to see some of these 'Hitler' parodies already returning to YouTube...Here's one we linked to during March Madness]