Update: This is also worth taking a look at -

http://ideas.4brad.com/studio-does-content-id-takedown-my-hitler-video-about-takedowns

Meta: site problem. The following page:

http://www.againstmonopoly.org/index.php?perm=593056000000002845

will not fully load. The page is truncated right after the words "Submit Comment"; the comment submission form itself is the part that's missing as a result.

That seems to be the only page affected out of several that I tested.

Reloading the page does not resolve the problem. The server cuts off the last part of the page's HTML code consistently every time it serves that page.

Please identify and correct this problem ASAP, since I'd like to make a comment to that article.

We have Star Trek conventions. From the number of videos and responses, it looks like we could have a convention based on these videos! The best video gets a version of the iron cross? A new commercial artistic opportunity!

Well, Justin, since I cannot comment on the other article, I have to comment on this one.

You confuse DMCA and copyright law. Yes, the DMCA has the word "copyright" in it, but it is actually quite separate from copyright. In fact, the DMCA "cheated" with respect to copyright by almost completely (and probably unconstitutionally) avoiding copyright.

In effect, the DMCA assumes the file against which a complaint is lodged is guilty until proven innocent. The DMCA also says to an ISP, IF the offending filed, video, etc., is found to be a copyright violation (wait - wasn't the DMCA supposed to be ABOUT copyright? NO, the DMCA is almost completely independent of copyright laws - it is more like legalized blackmail), then you could be sucked in as well. By removing the accused file, you get safe harbor.

Is there a parallel in other laws? Yes. If you become knowledgeable of a crime and fail to report the crime, you may be charged as an accessory. So, if you become aware that someone committed a murder, you may be charged as an accessory to the crime of murder. Does the ability to charge a person with murder have a SINGLE THING TO DO WITH LAWS AGAINST MURDER? No. They are separate laws.

I will point out, again, and as has been pointed out elsewhere, the DMCA has NOT been constitutionally tested before the Supreme Court. I believe that the provisions of the DMCA, since they in fact contravert constitutional protections, will be ruled unconstitutional in view of the constitution and COPYRIGHT LAW (HAH!), if it ever gets tested before the Supreme Court.

Simple example: If someone creates an opinion video of a company, and the video uses various items generated by the company that fall under copyright law, the company can lodge a complaint and have the opinion video pulled down.

Yet, under the constitution AND copyright law, such a video is protected under first amendment rights. In fact, if such an expression appears nearly anywhere else, in a magazine, newspaper or even on television, the courts have ruled over and over and over and over and over and over and over and over and over and over and over (just keep on going...) that such expressions are constitutionally protected as well as being allowable by copyright laws. The DMCA is an aberration that gets around this by threatening ISP's IF there is ever a successful application of COPYRIGHT law.

So go back and tell people to compare posts all you want. Parody remains parody. Fair use remains fair use. Just because they are taken down has virtually nothing to do with copyright law and constitutional protections, and if the laws that permit such takedowns are ever tested and the attorneys for the defendants are halfway decent, the DMCA is likely to be taken down.

Justin:

By the way, Nobody Nowhere's analysis of the four factors seems pretty much spot on to me. Note that he is applying COPYRIGHT law...let me say that slowly here for you...C-O-P-Y-R-I-G-H-T law...not the DMCA. Sure, you can twist an ISP's arm all day long with the DMCA, which pretty much avoids copyright law, but when it comes to actually taking an issue over a specific item to court, the complainer will lose if the video is protected under the first amendment or C-O-P-Y-R-I-G-H-T law.

The real problem here is two fold...

(1) Thus far no one has wanted to be the poster child for taking the DMCA all the way to the Supreme Court.

(2) I doubt there is a plaintiff who really wants to take the DMCA all the way to the Supreme Court, because if they did, and they lose, as they most likely will (hahahahahaha...under the first amendment and C-O-P-Y-R-I-G-H-T law), then the DMCA will immediately be dead. But, what entity that benefits from the DMCA would be willing to take the DMCA all the way to the Supreme Court with the near certain likelihood that the first amendment and C-O-P-Y-R-I-G-H-T law would put a stake through its heart?

Anonymous -

If the Hitler video issue were ever litigated in court, most (not all, but most) of the Hitler videos would likely be found to be in violation (depending on the specific context).

Other commenters on the web agree and point out that fair use / parody analysis is never as simple as you make it out to be.

http://volokh.com/2010/04/21/anything-you-can-do-i-can-do-meta/#comment-807478

http://volokh.com/2010/04/21/anything-you-can-do-i-can-do-meta/#comment-807881

http://reason.com/blog/2010/04/21/first-they-came-for-hitler#comment_1669195

As the above comments indicate, this has sparked a war of words between those who have studied copyright law for a long while and know how it practically operates in reality, versus those who understandably wish to label things fair use/parody to suit their personal policy preferences (which I obviously share).

Again, the four fair use factors are elastic enough that doing a "self-analysis" doesn't prove anything. You need to point to case law which demonstrates how the parody defense is actually applied by the courts. When you read up more on that, I think you will be surprised and disappointed on how hollow a defense it often is and how little protections it often affords.

How do you conclude that the DMCA would be struck down by the Supreme Court? Simply parroting the phrase "first amendment" isn't going to help as past cases have shown us in the copyright context. First Amendment law only implicates government action with regards to censorship. I don't see how that is implicated here since the takedown notices are all done through private actors.

If you are so confident, then there is nothing to be worried about with the DMCA since a case will eventually find its way to the Supreme Court and be struck down. The reason people are up in arms over it is because they know full well that it will likely be upheld - which is naturally an outrage.

Please keep a civil tone, identify yourself for now on with a specific moniker that distinguishes you from other "Anonymous" commenters, and argue from reason (preferably with cited legal sources) or I will have no hesitation in simply deleting your comments and closing off the thread.

Justin: is the condescending tone of your post here really necessary?

On the matter of fair use: the proportion of the work is one of the four factors and clearly in favor here -- typically about three minutes out of 156, or one part in 52, the same proportions as one card to an entire deck. How it affects the market for the work is another factor, and I don't see any of the three-minute parody videos being a substitute for the entire movie. Short, repurposed clips generally will meet both of those fair-use factors.

Published, factual works (and this is clearly published and based on a true story) have more fair-use leeway when copying from them than do unpublished and/or fictional works.

That's three.

The remaining factor is character of the use. Parody is protected speech, but when it's not parody of the copyrighted work itself or the copyright holder's beliefs this factor is weakened. There's a strong case for the ones on the topic of the takedowns themselves being fair use, then, since they are using the excerpt from the copyrighted work to criticize the copyright holder, which makes all four factors favor a finding of fair use in those instances. The fair use case is weaker for the rest of them, but I'd call it still fairly strong with three of the four factors clearly favoring a finding of fair use.

I don't know why you seem to think the fair use cases for these videos would be weak with three of the factors aligned in their favor and only one of them iffy. It feels like you're betting that a particular pair of coin tosses will come up double-heads, when the rational assessment is that the odds against you are 75%.

First Amendment law only implicates government action with regards to censorship. I don't see how that is implicated here since the takedown notices are all done through private actors.

The takedown notices only have the power they do because of government. Without the DMCA's notice-and-takedown requirement, there'd be no liability on service providers that ignored a DMCA takedown. Much censorship could be avoided simply by changing the DMCA to notice-and-notice. That makes the DMCA an integral part of the censorship, and thus the legislature and the courts complicit in it, and that in turn appears to be a First Amendment violation given how frequently a takedown is executed for protected speech rather than a genuine infringement.

Please keep a civil tone, identify yourself for now on with a specific moniker that distinguishes you from other "Anonymous" commenters, and argue from reason (preferably with cited legal sources) or I will have no hesitation in simply deleting your comments and closing off the thread.

Did I just read that right? Did you really a) accuse someone else of being uncivil in tone when the tone of your own post seems quite similar to that of theirs, b) tell someone not to comment anonymously on a blog that expressly permits anonymous commenting, and then c) threaten to actually censor people? Irony alert.

Although I have rarely commented, I have read this blog for years, and now I find myself questioning whether I should continue to do so. If certain opinions will now be deleted, and anonymous commenting, and commenting on particular posts, barred, then I shall be shaking my head in sadness and disappointment, deleting my bookmark, and chalking this one up as another blog that jumped the shark.

In particular if I ever find any evidence (such as via web.archive.org or Google cache, or my own eyewitnessing) that comments have been deleted here that were neither spam nor clearly off-topic, then I will quit this site, particularly as this site has a steady trickle of spams and other off-topic comments that have generally been allowed to stand (and even one or two flamewars that devolved into little but namecalling and "I know you are but what am I" style ripostes). Thus any deletion of on-topic comments would be proof positive that the site's deletion policy has less to do with the comment's on-topic-ness than it does to do with the personal feelings/opinions of the sysop. (That blatantly pro-monopoly comments have also been allowed to stand consistently over the years would make it clear that it was, in fact, even more arbitrary than that, perhaps only when the sysop had a particular, personal beef with the comment or the commenter!)

I hope that your threats of censorship were either a badly-delivered joke (badly-delivered in not being obviously non-serious) or else a temporary aberration in the heat of the moment that you won't follow through on, and perhaps even will apologize for. Because it sure looks like the main "crime" of the commenter you threatened was not incivility (much worse has been allowed to remain on this site) nor anonymity (expressly allowed by the site's configuration for donkey's years) but the mere fact of disagreeing with you.

Harry:

I like you.

Even better, I like your enumeration of the four factors test. They also seem to support the points I have attempted to make.

Merely running about with a "copyright sucks" banner, while interesting, seems to fall short of making relevant points.

However, Mr. Levine wants case law, I got case law...

Hustler Magazine v. Falwell Campbell v. Acuff-Rose Music, Inc. (Supreme Court says parody is a defense to copyright infringement - a shock - who knew?) Leibovitz v. Paramount Pictures Corp. Mattel v. Walking Mountain Productions Suntrust v. Houghton Mifflin (oooo...parody of Gone with the Wind - PRO-TECTED!) Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (S.D. Cal. 1955) Elsmere Music, Inc. v National Broadcasting Co. ("I Love Sodom" was deemed a parody of "I Love New York") Fisher v. Dees ("When Sonny Sniffs Glue" is acceptable parody of "When Sunny Gets Blue")

...oops, ran out of time to find more case law. However, there is a bunch. About the only time parody is not protected is when there is near copying of the source material, though even that may be protected in certain cases.

Harry -

The response for threats of deletion came from the tone on a separate post on the Star Wars Uncut issue which started getting increasingly nasty. Not the comment on this one. When you read his original comments in the other thread and follow his own original tone and line of thinking, then yes - the resulting tone from me is entirely justified. I'm sorry that the anonymous person has apparently taken it all personally and felt bad that I pointed out that he knows less about how copyright law operates outside of theoretical discussions than his comments suggested, but oh well. It has devolved into a case where he feels the need to "win" and get the last word in at all costs. Again, oh well.

All of the case law cited here were instances of the parodies directly targeting the original works. That is not the case in many of the Hitler videos, and certainly not the case in the completed work of Star Wars Uncut which started the flame war between me an the anonymous poster. Obviously I am not arguing that a parody defense never exists in the law. I am merely stating that it is unlikely to succeed in many of the Hitler videos and and even less so with Star Wars Uncut (which uses the entire work).

Anyone can read the 4 part fair use factors and then do their own self-analysis to justify their positions. None of that has any relevance as to how the courts actually apply it.

If I try to utilize my law degree to explain to other people how the law actually operates in this area, I am suddenly accused of being condescending or arguing from authority. Oh well. If you wish to personally believe that these works would be protected in court, its no sweat off my back. I and most other attorneys who work in copyright areas know otherwise, but again, you can feel free to continue to think of how foolish and naive we all are.

I would again ask you to read other commenters at other sites on this issue and ask yourself if you feel that they are equally as wrong and misinformed as you apparently believe I am. In relation to the StarWars Uncut issue which started this debate, I would ask you to analyse how the Dr. Suess V. Penguin Books case would not apply.

If you are unwilling to do that - oh well. No sweat off my back.

The response for threats of deletion came from the tone on a separate post on the Star Wars Uncut issue which started getting increasingly nasty. Not the comment on this one. When you read his original comments in the other thread and follow his own original tone and line of thinking, then yes - the resulting tone from me is entirely justified.

Seemed you were slinging mud at each other, to me.

Moreover, I don't think it's the same anonymous poster there and here. The one calls himself "Nobody Nowhere" apparently after the site's default email and the other leaves it as "Anonymous". A quick search shows other similar posts by "Nobody Nowhere" but not by "Anonymous".

It has devolved into a case where he feels the need to "win" and get the last word in at all costs. Again, oh well.

That's an interesting thing for you to say, because it doesn't seem to me that he is the one disabling commenting to certain threads and threatening to delete posts, i.e. using or threatening to use admin privileges to get the last word.

If I try to utilize my law degree to explain to other people how the law actually operates in this area, I am suddenly accused of being condescending

It's the tone/subtext of your posts that gets them labeled as "condescending", not the declarative content.

Now: can you name any case in any US court where three of the four fair use factors strongly favored a finding of fair use, and a fair use defense was used by the defendant, but the court found the use to be infringing instead? I'd like to see a citation of the form Jones v. Smith for, preferably, multiple such cases. Better yet, statistics on what proportion of cases with three fair use factors in favor lead to a finding of infringement, as a percentage of all cases that go all the way to a judgment. (There may still be a bias there, if cases that get settled were more likely to be won by one side or the other on average. I don't see an easy way to correct for that bias, given that settlement terms tend to be confidential so it's hard to judge from publicly available data who can be said to have "won" in those cases. Even if we could, that reflects how the lawyers for both sides thought the court would eventually rule, which may not be the same as how it actually would have had it gone to a judgment.)