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

Apr 25, 2010

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]

3 Comments

  1. Uh they weren’t using DMCA to take these down so how can it be illegal?

  2. It was not illegal to take the videos down. It’s Google’s platform and it’s well within their means and TOS to take videos down.
    Rights to free speech and fair use don’t include the guarantee that a private company like Google has to pay to host your video. Especially when uploading a video constitutes agreement with their TOS which includes video takedowns.
    Obviously to Google the value of film producers feeling comfortable with the technology and possible future partnerships are more important than a few funny parodies which everyone’s already seen.
    Personally I’d agree that the sooner media fully embraces the internet as a distribution method the better.

  3. I don’t have a problem with youtube because they are only trying to be cautious. The extent to which the copyright claim is valid may be decided by the courts, if the case reaches the courts, but what about the substance of it ? It was not one or more of the many who became targets of satire in the Hitler parodies who made up a case, but the film makers themselves, over copyright. Why ? The film itself is not losing it’s value and the film company are not hurt financially or in any other way. Obviously their motive was political and they have beein pressurized by extreme right wing groups in Germany to act in the way they did. They said “Hitler is our guy and the non-aryans cannot make fun of him”. That’s the only explanation I can give.

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