BROOKE GLADSTONE: In 2005, a German movie called Der Untergang, or Downfall was an Academy Award nominee for best foreign language film. It didn't win but of all the films in the category that year it may be the most watched, or at least one small part of it because a couple of years after the film’s release YouTube users began putting fake English subtitles on a four-minute scene in which Hitler, in his underground bunker, flies off the handle. In the movie, which is in German, Hitler is actually ranting about how his orders aren't being followed, but the new subtitles have him ranting about everything from losing his house during the mortgage crisis -
INTERPRETER FOR “HITLER”: Real estate only goes up!
BROOKE GLADSTONE: - to getting banned from Xbox Live.
INTERPRETER FOR “HITLER”: I am so desperate for a game console right now, I might be forced to go out and buy a god-damned PS3!
BROOKE GLADSTONE: The Hitler meme, as it became known, flourished for years, with hundreds of Downfall videos viewed millions of times online, flourished, that is, until last month, when Google, which owns YouTube, pulled the plug. Constantin Films, the German company that owns the rights to Downfall, said that the mock videos were a violation of its copyright. Those who had posted them were left wondering what about fair use, isn't parody protected under U.S. copyright law? We asked Electronic Frontier Foundation attorney Corynne McSherry.
CORYNNE McSHERRY: Is it a fair use? Well, it’s an entirely noncommercial use, which is one of the factors that courts would pay attention to. It’s taking the original work and putting it to an entirely new purpose, distinct from that of the original work. A court would look at how much of the original work did you take and did you take more than you needed to? Here you've got four minutes of a two-hour movie, and the bunker scene is sort of crucial to the parody and satire that happens in the subsequent work. And a final factor that’s very important to courts is have you harmed the market for the original work. I just can't see any conceivable way. It seems to me a very, very strong case that it’s a fair use and, therefore, not an infringement of copyright.
BROOKE GLADSTONE: This has been Google’s deal with content providers all along. If they want something down, they'll take it down. Why did they strike that deal?
CORYNNE McSHERRY: They want to say - look, we host content but we don't want to be liable if any of that content is infringing. And if someone complains, fine, we take it down. We just make sure that there’s options for users to challenge that and have the content be put back up.
BROOKE GLADSTONE: So what are the options that users have?
CORYNNE McSHERRY: What they can do is they can file a dispute, a notice back to YouTube saying, this material was taken down improperly, please put it back up. Then, according to YouTube, the material is put back up right away and the copyright owner then has an option of sending a formal legal notice, or not. So there is a series of escalating steps. The difficulty is that many users, number one, don't understand how the dispute system works. Secondly, users are concerned that if they challenge a takedown, even if they believe that their video is protected by fair use, that they might get sued.
BROOKE GLADSTONE: Now, obviously the Electronic Frontier Foundation, for whom you work, believes very strongly in protecting fair use. So what do you see as the danger in having YouTube, by far the most popular video-sharing site, more or less set this low standard by which content can be taken down?
CORYNNE McSHERRY: We think it’s a very serious danger. A copyright owner can essentially set the filter to just take down everything, even when they haven't even bothered to look at the material, consider whether it’s protected by fair use, in fact, may not even care whether it’s protected by fair use. The Internet has been an extraordinary forum for new kinds of speech, some of it political, some of it just funny, some of it critical. And when you see mass takedowns like this, it sends a signal to creative people who are interested in doing different kinds of remixes that at any minute something they've worked very hard on can be disappeared. And that’s a terrible signal to be sending.
BROOKE GLADSTONE: I've mentioned that you've seen a lot of these Downfall videos. Do you have a favorite?
CORYNNE McSHERRY: Well, unfortunately, some of my favorites have now been taken down, so I can't point anyone to them. But one of my favorites is entitled Hitler Reacts to Hitler Parodies Being Removed from YouTube.
[BROOKE LAUGHS] And it’s very, very funny, and for anyone who, who goes and looks it up, watch to the end.
BROOKE GLADSTONE: Corynne, thank you so much.
CORYNNE McSHERRY: My pleasure.
BROOKE GLADSTONE: Corynne McSherry is senior staff attorney with the Electronic Frontier Foundation.