Der Untergang, better known as Downfall in the United States, was a film released in 2004 in Germany about the final days of Adolf Hitler as it was becoming overwhelmingly obvious that he was losing World War II.  One scene in particular where Hitler flies into a tirade about how his plans have failed has become an Internet phenomenon, and it has spawned hundreds of parody videos.  The videos all retain the original audio track, but feature subtitles that tell a tale that revolves around any number of subjects.

This popular meme has been going on for some time now without any problem, but on April 21st, that all came to a crashing end as Constantin Film Produktion, the company behind the film, started using YouTube's Content ID system to remove unauthorized clips of the film from the site.  The problem is that these clips clearly fall under the Fair Use clause of copyright law as they are parodies, and parody is a protected form of speech that is covered by the 1st Amendment of the U.S. Constitution.

youtube logoThe day after the removals began to happen, the video you see above appeared, and YouTube knew it had a PR disaster on its hands.  A post went up on the official blog that tried to explain how the Content ID system just looks at the content itself, and not the context it is presented in.  In other words, it can't tell use for parody or educational use, both of which are legal under Fair Use.

As opposed to try coming up with a way that it might improve the system, YouTube opted to tell users how they can put the claim into contention, and that will immediately restore the video to the site.  The problem is that the production company could then moving to a far more serious DMCA (Digital Millennium Copyright Act) claim, which the content creators would be in the right, but can any of them really afford to go to court over the case?

What exactly the company is hoping to accomplish by taking down these videos (lets be honest, have you really seen any other Downfall clips circulating other than the Hitler videos?) was unclear at first.  This has obviously brought the film to the attention of far more people than just about anything else out there.  There is no question if people were just slapping clips up without any educational or parody use, Constantin Film Produktion would be totally in the right to pull the clips, but by making a blanket pull of the clips, they have caused an endless amount of headaches for YouTube and the content creators who worked hard on these clips.

The Hollywood Reporter, one of the main trade publications for the entertainment industry, contacted Martin Moszkowicz, Constantin's head of film production.  "Sometimes we have been asked to take certain ones down — by companies whose products have been ridiculed or from Jewish associations who were offended by certain neo-Nazi parodies using Downfall footage," he told the publication.  Dirk Schurhoff of Beta Cinema, which handles world sales on Downfall, told the newspaper, "Enough is enough, really. It's a matter of principle," Schurhoff said. "It's Constantin's film, and they have a right to say how the images get used."

The problem is, when it comes to works of parody, the original producer really doesn't get a say in how they are used.  Make no mistake, this appears on the surface to just be about some little funny videos, but it sets a precedent for all parody work on the Internet.  If this stands without challenge, it is literally an attack on one of the oldest forms of free speech.  Who judges what is a legitimate parody and what isn't?  Will all parody creators have to worry about fighting legal battles to keep their creations online because the original producers are offended by someone parodying their work?

It's a slippery slope, and this isn't an auspicious start to the discussion.

What say you?  Who is right in this matter?