One the most enduring (and consistently entertaining) Internet memes of the past few years has been remixes of the bunker scene from the German film, The Downfall: Hitler and the End of the Third Reich (aka Der Untergang). EFF Boardmember Brad Templeton even got in on it, creating a very funny remix with Hitler ranting about troubles with DRM and the failure of DMCA takedowns to prevent fair uses. (Ironically enough, that video resulted in the Apple Store rejecting an EFF newsfeed app.)
In a depressing twist, these remixes are reportedly disappearing from YouTube, thanks to Constantin Film (the movie’s producer and distributor) and YouTube’s censorship-friendly automated filtering system, Content I.D. Because the Content I.D. filter permits a copyright owner to disable any video that contains its copyrighted content -- whether or not that video contains other elements that make the use a noninfringing fair use -- a content owner can take down a broad swath of fair uses with the flick of a switch. It seems that’s exactly what Constantin Film has chosen to do.
This is hardly the first time that Content I.D., has led to overbroad takedowns of legal content. Copyright owners have used the system to take down (or silence) everything from home videos of a teenager singing Winter Wonderland and a toddler lip-syncing to Foreigner’s Juke Box Hero to (and we’re not making this up) a lecture by Prof. Larry Lessig on the cultural importance of remix creativity.
YouTube users do have options for response (read our "Guide to YouTube Removals" for details.) But YouTube's procedures for "removing" videos have created considerable confusion among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Others may be leery of exercising the dispute option. While the risks may be low, our broken copyright system leaves users facing the prospect of paying outrageous statutory damages and even attorneys' fees if they stand up, fight back and, despite overwhelming odds in their favor, lose. It’s a gamble many people just aren’t willing to take, even when their works are clear fair uses.
If copyright owners want to block remix creativity, they should have to use a formal DMCA takedown notice (and be subject to legal punishment if they fail to consider fair use), rather than a coarse automated blocking tool. That is one reason we called on YouTube to fix the Content ID system so that it will not automatically remove videos unless there is a match between the video and audio tracks of a submitted fingerprint and nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work. That was over two years ago, and YouTube told us then that they were working on improving the tool. If YouTube is serious about protecting its users, it is long past time for YouTube to do that work.
UPDATE: Templeton's video was also targeted; check out his discussion on his personal blog.