Memes never die. They just fade away. Downfall subs were a meme to last a thousand years, but survived only six.



If you have never seen Hitler complain about Brett Farve’s pseudo-retirement, the HD-DVD/Blu-Ray format wars, or the American election cycle, then this may be your last chance. The uber-popular Downfall subs, aka The Hitler Meme or Hitler Finds Out, in which users provide new subtitles to an amazing scene from the 2004 film Der Untergang (Downfall) of the Great Dictator melting down in his bunker, are in the process of being walled off. The German production company Constantin Film has blocked these parodies from YouTube “on copyright grounds.” If there is still time, I recommend you read Alex Leavitt’s excellent exploration of the history and meaning of this meme (and memes in general) at doalchemy.org.

My immediate thought on hearing this news was to create a “Hitler finds out that ‘Hitler finds out’ is being taken down” but was I happy to discover that general friend of Internet Freedom, Brad Templeton, has already completed a masterful parody of an earlier rash of take downs. But my joy was tempered by the thought that YouTube users may lose access to such a widespread, versatile, and dare I saw, intellectually valuable meme.

So let’s follow the familiar route and explore: 1) these automated takedowns, 2) why this particular line of attack is colossally stupid, and 3) fair use (the likely tool used by content authors to salvage their own “Hitler finds out” creations).

First off, there are a few sites reporting that the Hitler blackout is the result of DMCA takedown notices. This is not technically correct. This particular shut down appears to be the result of YouTube's “Content ID Tool.” In response to requests from copyright holders, YouTube has added a Video ID tool that checks uploaded videos against a cache of digital audio/video fingerprints for copyrighted content. The copyright owner can choose to automatically block, track, or monetize videos that contain their fingerprinted content. So the owner has several, non-destructive, value-adding options. Constantin films has elected to go through door number 1, which is a bit like getting involved in a land war in Asia.



Second, the decision to drag their content from the hands of potential consumers is simply idiotic. Constantin could have tried to generate ad revenue from user-generated content, making money for nothing (and chicks for free). Or, it could have used the track figure to gather more information about the relative popularity/interest in Downfall and targeted those markets for future sales. Instead, Constantin has decided to go dark, and hope that consumers, who will no longer be constantly exposed to novel commercials for a 6-year-old product, will suddenly gain a greater interest in German Cinema. Who thought this was a good idea?

Finally, I’d like to briefly touch on the possible legal posture of users and Constantin: are “Hitler Finds Out” videos fair use of Constantin’s copyrighted content? The fair use defense looks to the purpose and character of the use, the nature of the work itself, the amount of the work used, and the effect of the use on the market value of the work. 17 U.S.C. § 107. It seems to me that the majority of these factors point in the favor of Hitler artists. These videos appear to be non-profit (though I suppose they might be hosted on other sites with embedded ads), the amount of the movie used is rather short, and my gut tells me that these videos had no negative effects on the market value of Downfall. (I, for one, first watched Downfall after seeing the particularly intense “Hitler finds out Barack Obama is the presumptive nominee.”)

Also, I’d like to briefly correct a view I have seen on several sites: just because the videos are being used as parodies does not automatically render them fair use. While it is true that courts generally look favorably on parody, they are much more likely to allow parodies which provide commentary on the originally copyrighted content. For example, the song Barbie girl and the art installation “Food Chain Barbie” were deemed fair because these works commented on the social values embodied by Mattel's Barbie doll. Here, the great majority of “Hitler Finds Out” videos aren’t parodying Hitler or the Movie Downfall or Constantin films (though I have a feeling that’s about to change), but are instead simply using the image of Hitler to comment on Brett Farve’s career, or the rabidity of Apple Fanboys, or the pressure to create new and interesting memes.



So to sum up: these take downs are like waging a two front war – monumentally dumb. This whole maneuver seems to be a pointless exercise of copyright for copyright’s sake – if it’s wrong to want to live in a world where I can see Hitler complain about the ending of Inglourious Basterds, then I don’t want to be right.

(Andrew Moshirnia is a second year law student at Harvard Law School and a CMLP blogger. He had many Hitler related meme-puns. His favorite was Meme Kampf, which totally makes sense because it would mean Meme Struggle, and that's exactly what this is, but he rightly assumed his editors wouldn't let him print that.)