May 28, 2009 | By Hugh D'Andrade

When Fair Use Is Fairly Difficult

For years, it's been a notoriously popular internet meme to remix the "bunker scene" from the 2004 film "Downfall." In the original scene, actor Bruno Ganz portrays Adolf Hitler's ranting breakdown in the final days of the Third Reich. In the hands of internet remixers, the scene's English-language subtitles have been modified to transform it into commentary on everything from the subprime mortage crisis to breakfast theft. There've even been meta-commentaries on the meme itself.

EFF Board Chairman Brad Templeton recently remixed his own version, with Hitler ranting about troubles with DRM and the failure of DMCA takedowns to prevent fair uses. Take a look, and then keep reading to see what Brad's experience making it tells us about fair use and the DMCA.

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Unfortunately for Brad, he found in making his parody that creating a fair use like this — and doing so legally — is not as easy as it ought to be. As a high profile advocate for digital rights, Brad naturally wants to avoid breaking any laws. And while fair use protects his parody from charges of copyright infringement, he wanted to ensure that he didn't accidentally violate other laws — in particular the DMCA's prohibition on circumventing encryption.

This meant that Brad couldn't just rip a copy from the his own legally purchased DVD. Instead, just to be safe, he would have to make a copy of the film using the "analog hole," a form of copying that has been recognized by the courts as legally permissible. But that approach brought multiple headaches, as Brad notes on his blog:

So I got a copy of the movie, and discovered that the U.S. edition of the film has the English subtitles encoded right into the video. Normally subtitles are in their own file and can be turned on and off, but not in this edition.

Brad had to buy a European version of the film, which comes with optional subtitles, but this meant hassling with region code restrictions:

One can get region 2 DVD players, but the easiest way to play one is to get a PC with a DVD drive. The Windows software DVD players all let you set the region code when you first use them, some let you change it a few times but won’t let you change it after that. I have so many PCs and DVD players that it is no bother to me to set one to region 2, and so I did. It was able to play the video out the S-video port, and I connected that to my linux box with a video capture card, the same one that records my Cable TV for me.

The upshot is that Brad was able to create a brilliant parody — with a nice tip of the hat to EFF's work protecting fair uses like this one from bogus takedown notices — but only after weeks of hassling with various technical problems that would make most people throw up their hands in frustration. This is a perfect example of why EFF has been advocating for DMCA exemptions for this sort of activity. No one should have to surmount these sorts of technical barriers just to make use of their legally protected free speech rights!


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