Peter G (sinetimore) wrote,
Peter G

The War Is Over?

* ,which is beyond the scope of this rant. *  You're going to be seeing this line often enough, I might as well list it as an include directive.  I have a very specific problem and I want to stay focused.  So while there are other things that may be worth talking about or simply expressing an opinion on, they will only distract from what I'm trying to address here.

I was hanging out with the coders online and a new guy was accepted into the channel.  I don't just mean "new to us", he was pretty new to everything.  A few of us were giving him a crash course in meme's and he wrote, "Maybe someone should make a meme about Hitler.  That would be pretty funny."  The responses were things like, "YOU MUST BE NEW HERE!" (mine) and "WELCOME TO THE INTERNET!"

For those who came in late:  Constantin Films in German decided to make a movie called "Downfall" about the downfall (obviously) of Adolf Hitler.  There is the infamous bunker scene, where Hitler realizes he's screwed and flips his shit.  A netizen decided to take the footage and add his own subtitles, so while the speech is still in the original German, the subtitles are Hitler screaming about Windows Vista or Disney buying Marvel or whatever strikes people's fancy that day.  As is typical for meme's, some were funny, some were just "me too" type things where the participants want in on the fun but don't quite make the joke work, pretty standard.

Now, Google has been under pressure from content providers about things they own the copyright to being posted there, which is beyond the scope of this rant.  Originally, studios had to file DMCA takedown notices with Google.  To speed things up (and presumably get the studios off their backs), Google created "Content ID", where they run uploaded media through a digital sorter and if the "fingerprint" matches something, they take it down without so much as a by-your-leave, which is beyond the scope of this rant.  This can still take days or weeks, however.

Now, there are plenty of people complaining about the Downfall meme.  The Anti-Defamation League says the videos are not funny because they turn Hitler into a cartoon character, which is beyond the scope of this rant.  Constantin Films isn't happy, either.  They contacted Google and had "Downfall" added to their Content ID system.  Now, Downfall meme's are vanishing from YouTube.  One guy even made a meme about YouTube removing the videos.  I watched it the other day.  It's gone now, and the guy is taking it to the Intertubes, complaining about his First Amendment rights and Fair Use and parody.

And here's the thing....

He's right.

Remember, I cut my teeth doing fan games, three of them under my belt (four if you count the Real Ghostbusters game I made for my PCjr that no one but me had.  It WAS a PCjr).  I have also done research into the legalities of fan games in general and the Fair Use Defense in particular (it became one of my defining pieces that I wrote for Video Game Trader).  So I am well aware of Fair Use.  And I support it.  My copyright notices in my projects all specifically state that Fair Use is allowed.  I am aware that there is a certain point where I will not be able to control what is done with my work.  If someone really wanted to, say, do a goof on Stress Puppy, all I can do is stand back.  Any time I hear someone claim Fair Use, I immediately examine.  Most people just cite Fair Use out of laziness.  They just do something, and when rights holders say, you can't do that, reach for it (hello, Harry Potter Lexicon).  There are no hard and fast rules, Fair Use is established in court through precedent and current considerations.  It's a game time decision.  So the obvious question is, is the Downfall meme Fair Use?

The Downfall meme is most definitely parody.  The First Amendment guarantees protection to parody for first publication (after that, you're on your own).  Posting to the Internet is legally publication, and as everything is debuting there instead of on the torrents, it is first publication and very much protected.  It falls under Fair Use, in that what is being done with the original work is transformative -- that is, when finished, the work is no longer in its original context, it is a completely different animal now, in this case a running gag and a satire of current events, it is not being presented as the original work that was created.  Perez Hilton dodges lawsuits about unauthorized use of photographers' pictures of celebrities by scrawling a couple of words or drawing a penis or two on it, and that's enough to protect him legally.  The Downfall meme is a far more legitimate parody.  If Hilton can get away with it, Downfall certainly deserves to.

And this is why I'm so disappointed in Google.  Basically, Google is very much in a position to tell Constantin Films to shove it.  But they aren't.  For whatever reason, Constantin is determined to control what is done with "Downfall", even if it means destroying people's rights.  Constantin is entitled to their opinion about whether the meme's should be allowed or not.  But Google, with its "Don't be evil" slogan and support for digital rights (from pulling out of China to their Summer Of Code challenge that requires entries be GPL'ed), has an obligation to point out the obvious.  Constantin is in the wrong.  It's a stupid joke that is not worth the effort.  And Google is not defending the rights it claims to love so much in other areas.

Google occasionally blows it.  Certain people get views of their houses blocked on Google Earth.  YouTube uses Flash instead of the less encumbered HTML5 video format or ogg Theora (they even bought the company that developed it last year).  Their new Go language is only for Linux, if you want it under Mac or Windows, you better come up with the compiler yourself.  The Android SDK makes programs that will work on any Linux build, but the license says you can only release them on Android, forcing hobbyists to dev things the hard way.  And leave us not forget they do not allow custom distros based on Android, they DMCA'ed that project into uselessness.  But those are their properties.  They own them, they can do what they want with them.  They do not own the First Amendment and Fair Use.  Google is selectively enforcing.  Google is wrong.
Tags: art, digital rights, drm, haven't we suffered enough, hypocrisy, important life lessons
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