As a recent contributor to the "Hitler meme" genre of detourned video parodies of the movie Downfall, I was inspired by the recent Rocketboom video with Kenyatta Cheese, describing the steps to challenge a YouTube takedown. Rocketboom, in turn, was motivated by the recent wave of takedowns ordered by Downfall producers, Constantin Films, which resulted in the removal of hundreds of Downfall parodies, mine included. Critical Commons' contribution to the Hitler meme Digital Humanities and the Case for Critical Commons was created to publicize the relaunch of this site and its promotion of fair use of media by educators. I was contacted by Alison Hanold of the Center for Social Media at American University, who was writing an article about YouTube's takedowns of the Hitler videos and she generously included my my thoughts about the Downfall takedowns:
I found the latest round of Downfall takedowns to be unfortunate and poorly timed on the part of Constantin Films, which is now being subjected to disproportionate resentment and vilification. I’m not saying they shouldn’t be criticized, but there are many other much worse offenders among the copyright industries’ takedown trolls and it’s toward them that our real outrage should be directed. The shock-and-awe strategies that have been favored by members of the MPAA and RIAA for the past decade have had an impact on some people’s behavior and it has instilled fear and paranoia in many others. But, like military shock-and-awe campaigns, it’s short-sighted and ultimately counter-productive. The longer-term impact of such mass takedowns is organized resistance and legal efforts that will ultimately have a greater cost to the media industries than a mere public relations nightmare. Creators, students, educators, vidders (etc.) have unprecedented resources and support at their disposal in the form of the CSM’s Best Practices guides and a growing body of court decisions supporting fair use. Indiscriminate takedowns that ignore the legitimate protections of fair use are just as illegal as commercial piracy and it’s time for the industries to start being held accountable for their actions.
In retrospect, I think the real issue here is not the actions of Constantin Films, a relatively small player who has been swept into the current copyright wars, but the resulting wave of awareness about YouTube's use of automated takedown systems, including ContentID, which was used by Constantin to order the Downfall takedowns. Of course, none of this is intelligible outside the context of the current Viacom v. YouTube litigation, which could significantly undermine current interpretations of the DMCA safe harbor clause that made YouTube a billion-dollar company and made online video a key part of the cultural vernacular for millions of creators. While automated takedowns and "fingerprinting" systems that sniff for copyrighted content while a file is being uploaded may have once seemed like the silver bullet to fight unauthorized uses of copyrighted materials, such systems are incapable of making nuanced determinations about the fairness of a given use. It will be no small irony if these automated measures, intended to deter and intimidate even legitimate users, turns out to be the "downfall" of the copyright industries' last-ditch efforts to hold onto a fading business model.