How much Cultural Heritage is destroyed by copyright ?

Okay, now that the bombastic title has been said, the disclaimers:

  1. I am not against copyright per se;
  2. I do not automatically condone acts against copyright;
  3. When I first wrote this post it was 2h30 (in good civilized 24 format) and I always feel very brave this late in the night (“oh, yeah, let’s definitely post that !”) but much less so the next morning (“you know what, let’s not touch the beautiful and fragile seal of that can of worms”.)

But I have been reflecting on the recent events on Egypt, and on how “War” and “Civil Unrest” are known as two important causes of Cultural Heritage destruction. Together with “Flood” and “Fire” they are certainly right in the top 10 list of every conservator worst nightmares.

But what about “Law” ? And specifically, “Copyright Law” ?

I am thinking about this because of Google’s Video Identification service (Beta, of course) on YouTube, which allows participant copyright holders to automatically identify uploaded videos containing their material. The applied phlebotinum is quite interesting, actually, and involves near-duplicate identification using content-based techniques. I am particularly interested in this kind of technology, and I feel particularly concerned — scientifically and ethically — because this was the subject matter (mutatis mutandis videos per images) of my Ph.D. Thesis.

The terms of service are very interesting: it allows the copyright holders the draconian choice of just removing the “offending” material, but also invites them the more nuanced choice of embracing the Millennium, letting ‘their fans to participate in the creative process’ and even “splitting the loots”, by becoming partners with YouTube and sharing advertisement revenues.

It is a fact that many are embracing the Millennium, for matters of profit, fun, philosophy, or all the above. But what happens when they don’t ? It’s then that content, id est, cultural digital artefacts hit the proverbial bit bucket.

The alarm button sounded to me a while ago, during the infamous case of the “disappearing Hitler movies”. You’ve heard the story: there was this unknown European film about Hitler, and then there was a parody based on one of its hammy scenes, and then there were a few derivative parodies, and there were thousands of derivative parodies, and now the thing was viral and all bets were off. Suddenly everybody knew about both the parodies and the film. Sounds like a fair deal, no ? Well…

One day the parodies started to disappear. Silently, quickly and deadly. Predictably, YouTube users were outraged. There were even those daring enough to point out the irony of the situation, proving that Godwin’s Law is alive and well. Fortunately, after much hesitation, YouTube came to its senses and concluded that if there is one canonical example of fair use, the ill-fated Hitler parody is it, and stopped taking the videos down.

This is now official, recorded History, with a big H, and Wikipedia tells it better than I. I quote:

One scene in the film, in which Hitler launches into a furious tirade upon finally realizing that the war is truly lost, has become a staple of internet viral videos.[16] In these wildly anachronistic videos, the original audio of Ganz’s voice is retained, but new subtitles are added so that he now seems to be reacting instead to some setback in present-day politics, sports, popular culture, navajo moccasins, etc. One parody depicted Hitler flying into a rage in response to being banned from Xbox Live. The creator of this parody was the one who originally came up with the idea of Downfall parodies, his video Hitler gets Banned from Xbox Live was the first ever Downfall parody (and the first parody to be taken down as well).[17]This video accumulated a vast number of YouTube views and was posted on video game related sites.

By 2010, there were thousands of such parodies, including many in which a self-aware Hitler is incensed that people keep making Downfall parodies.[18]

The film’s director, Oliver Hirschbiegel, spoke positively about these parodies in a 2010 interview with New York magazine, saying that many of them were funny and they were a fitting extension of the film’s purpose: “The point of the film was to kick these terrible people off the throne that made them demons, making them real and their actions into reality. I think it’s only fair if now it’s taken as part of our history, and used for whatever purposes people like.”[19] Nevertheless, Constantin Films has taken an “ambivalent” view of the parodies, and has asked video sites to remove many of them.[20] On April 21, 2010, the producers initiated a massive removal of parody videos on YouTube.[21] However, there has been a resurgence of the videos on the site since the mass removal.[22] On July 28, 2010, Constantin responded by issuing DMCA takedown notices on videos which had countered the blocking of the videos using a Fair Use argument.[citation needed]

As of October 2010, Youtube no longer blocks any Downfall-derived parodies,[23] and is now placing ads on some of them. This was seen by many as a sign of relief, ending the cat-and-mouse game that involved parodists and Constantin Film.

Corynne McSherry, an attorney specializing in intellectual property and free speech issues[24] for the Electronic Frontier Foundation, stated “All the [Downfall parody videos] that I’ve seen are very strong Fair Use cases and so they’re not infringing, and they shouldn’t be taken down.”[25]

So, happy end ? Well, as an Archivist in spirit, I am not so convinced. I doubt that all the memetic diversity of the movies pre-, well, censorship, has been preserved.

I also wonder how many no less violent memecausts have been perpetrated in the silent of the night without getting any publicity, without their stories being told on Wikipedia, nobody complaining the citations are needed. There are no citations left.

Nowadays, every broken link followed by a friendly ‘Sorry about that.’ and preceded by mysterious messages of ‘has been terminated’, ‘no longer available’ and ‘copyright infringement’ sends a chill down my spine. Just in case, I quickly clear my history and jump to disney.com.

* * *

I wonder if, considering everything, anonymous isn’t a critical actor in the protection of endangered digital cultural artifacts. By keeping them circulating in alternative ecosystems when they can no longer exist in the official, sanitized world of law-abidden internet, how much software, game, image, video, text, mail exchange and other important testimony of our Culture has been saved from the unforgiving jaws of /dev/null ?

EDIT 6/june: There is a very interesting commentary on a 2005 report by the British CLIR (Council on Library and Information Resources) , focused on sound records on obsolete media, but that also considers more unconventional media.

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