The Hitler meme is just that: a meme, and not a parody. It doesn’t really comment on the film or even that scene in the film in any meaningful way. The extremely wide application of the meme and the variety different viewpoints expressed in the meme are rather suggestive that most of these videos are not commenting on the actual movie or scene itself. I’d also suggest that many more people have seen (and created) these videos than have actually seen the movie itself… and it’s understandably difficult to parodize (in the legal sense of offering commentary on that specific thing) something which you haven’t even seen.

http://www.youtube.com/watch?v=rlNOMaz7P64

So maybe there is still hope for this artform. We’ll see how long it lasts.

IANAL either, but our Large Website Lawyer was the one who told us to say these things.

They still have done nothing about the thief -way to support musician YOU TUBE!

DMCA takedowns are not a replacement for the courts, and it’s high time more hosting services and ISPs realized this.

Never mind that they don’t apply to my country, and yet US agents keep trying it on providers here…

It isn’t my best work. It’ll never get me business. There are people it will upset, though I think it was something that needed to be said. A sane person would have let this go. Today is the 10th business day since I did what the law tells me I’m supposed to do in these cases and filed a counternotice. We’ll see if it gets Biblical.

This is why the DMCA system needs to be fixed. The belligerent party risks nothing by asserting a false claim. I risk everything by contesting it. Even a $50 automatic damage for an uncontested claim would be SOMETHING to economically disincentivize a company from lying.

First, Google/Youtube have ‘changed’ or ‘highlighted’ absolutely nothing. All they’ve done is point out that it’s not their problem. If you get taken down by the content ID system it’s because of the default actions set by the content owner. Nothing about any of this has changed.

As for the options/actions available to a person whose video has been flagged (and either blocked, monetized or left alone), again, these are exactly the same as they were before. (I speak from personal experience. The ‘fair use button’ — it’s not actually a button at all, AND it requires you to ‘explain briefly’ — don’t forget to run that past your attorney first, kids — is three screens deep in the dispute process.)

Meanwhile, most, if not all, of the ‘Downfall parodies’ are NOT in fact parodies. This has enormous bearing on whether they’re fair use or not. (And of course, if it gets to a DMCA dispute and push comes to shove, you could still end up getting screwed big time by a court decision even if you were in fact perfectly in the right. Who do you think is going to be hiring the more expensive legal team, you or Constantin Film?)

Cory says:

the people who sent the original takedown have to go to court to get it taken offline again

As others have already pointed out: no, they don’t. The next step, if the rightsholders so choose, is simply to file a DMCA takedown notice, and your video gets taken down again. You can also dispute this takedown, but at this point you are exposing yourself to some serious liability. (IANAL, but again, I speak from personal experience. Last year, I disputed a DMCA takedown on a parody — an actual parody — that I made. The original rights holder then came back and told Youtube that they had filed suit, but this turned out to be untrue and they eventually backed down. In the end it took 3 months and some help from the EFF to get my video reinstated. To be fair, I should also mention that rightsholders are also technically liable if they file ‘frivolous’ DMCA takedowns, but this would be costly and difficult to pursue, and AFAIK it hasn’t yet been tested in the courts. In practice, my impression is that a corporation can still fire off DMCAs with very little risk of any blowback whatever.)

To be fair to Google/Youtube, they’re in a difficult position: they have to keep their corporate clients happy while also not pissing off their millions of users. Also, of course they have legal obligations, eg under the Safe Harbor provisions. Consequently, from time to time they fire off PR flack as per the OP. But that’s all it is, folks, just PR.

tl;dr version:

Google/Youtube is to Content ID like Pontius Pilate is to Jesus.

Awesome move by Google. Hilarity shall now ensue.

I think that’s going to be tested now.

Up until this point, it seems (judging entirely by reading BB posts over the years) that they would do it to anything mildly irritating to them. Now we’ll see who they really sue. Because they really don’t want to lose.

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

That seems to imply that the Hitler/Downfall videos are really satires, and not likely to be protected under fair use.