What we can learn from the 'Downfall' of Hitler

By Eriq Gardner

Quite a few people are outraged by the recent takedown of those YouTube videos that show Hitler launching into a tirade on just about every subject — from Michael Jackson's death to Sarah Palin to the very takedown process itself (check out the video below).

The clips come from a 2004 Oscar-nominated German film called "Downfall." Over the years, fans have put new subtitles on the film to parody all topics imaginable. The film has consequently garnered a lot of publicity, and even the film's director, Oliver Hirschbiegel, expressed his appreciation for the humor.  

But that wasn't enough to stop Constantin Film, the producer of "Downfall," from using its authority to kill the Hitler meme.

"We as a corporation have a bit of an ambivalent view of it," Martin Moszkowicz, an executive at Constantin, told the BBC. "On the one hand we are proud the picture has such as a huge fanbase and that people are using it for parody. On the other hand we are trying to protect the artists."

(Moszkowicz also gave an interview to THR that cites, among other things, pressure from Jewish associations offended by the parodies.)

Moszkowicz actually used the word "parody," which would seem to put these videos squarely within fair use bounds. Constantin could be treading on dangerous ground, considering that a U.S. court ruled that copyright holders must consider fair use before sending takedown notices to YouTube.

But maybe Constantin isn't entirely culpable here. This one may be YouTube's fault.

As the EFF points out, the videos were taken down as a result of YouTube's automated filtering system, Content I.D., which checks uploaded videos against a database of copyrighted content and flags possible infringements so a rights holder can make the call. Taking something down is as easy as a head nod. This removes the necessity of actually having to send a takedown notice and moves copyright towards more of an opt-in, rather than opt-out, system. In other words, it's exactly what copyright holders want.

In the midst of fighting Viacom, YouTube may not mind the content-friendly publicity. This could be a good opportunity to show studios that the video-sharing service has changed from its "Steal it!" days.

A move like that won't sit well with "fair use" advocates, but killing Hitler could be one way to achieve peace in the larger copyright war.