Background: I sent this letter to Constantin Films, creators of the film “Downfall” (a.k.a. “Der Untergang”) after a string of DMCA takedowns on April 20th, 2010, directed at many popular “Hitler Finds Out…” parodies. The videos were written about in the New York Times and even the director has said that he likes the videos. It’s unclear what made them act now when there are literally thousands of parodies and the meme is firmly established in Internet culture.
I wish to address your company regarding its recent DMCA takedown notices of “Downfall” parody videos on YouTube.
First of all, I want to say that there is a paper-thin legal justification for these acts and you should be ashamed for censoring free expression. These videos clearly come under U.S. copyright’s Fair Use provisions. It does not matter if the original film was made in Germany, or that the content used does indeed belong to you, the fact that they parody the original film means they are 100% protected in the United States. You filed takedowns through the American DMCA system and you’ve abused that system.
Second of all, this is an impossibly bad business decision. The great majority of these videos show the same exact clip of the film, and in no way discourage people from seeing the rest of the film. Quite the opposite — it should be obvious to any marketer that these videos were a vast resource of free advertising that strongly contributed to the interest in the film. Destroying that advertising, and angering legions of people at the same time, is preposterously stupid.
Lastly, and perhaps most important, there are unfortunate symbolic consequences. I must assume — since legal and business motivations are unlikely — that your lamentable decision was based on personal sensibilities. Certainly I might understand how a German company could be sensitive about clips making light of Hitler. However, not everyone shares your apparent feeling that portrayals of Hitler should be sacrosanct in seriousness. There are many who feel that videos like the ones you’ve had removed rob Hitler of some lingering symbolic power, and, further, that returning that power is most certainly an awful idea. I think you would agree that April 20th, Hitler’s birthday, was a very regrettable day for many of these takedowns to occur.
I have referred many YouTube parody posters to a video by EFF chairman Brad Templeton, and informed them that they can rightfully dispute such DMCA requests. I will be asking others not to buy or rent any films made or distributed by your company. I will also likely encourage or help people download “Der Untergang” for free if they ever wish to see it.
I urge you to reconsider your recent actions and, further, to make amends to these legitimate creators. If I were you, I would apologize privately after retracting all claims against parodies. A press release would be more expedient, but would attract more attention than I’m sure you want. Regardless of how you choose to act, please understand this — people are upset with your actions, and their concerns should be addressed.
Thank you for your time and attention,