The Internet is alive with the sound of laughter.

In 2004, a German language movie called Der Untergang (Downfall) contained a four-minute clip of actor Bruno Ganz playing Adolf Hitler ranting at his generals, as only the (real) Hitler, in full-froth fury, could do.  Then, as described by Reason’s Tim Cavanaugh in First They Came for Hitler . . .:

A few years ago, some inspired genius put on new subtitles in which the Führer ranted about getting banned from Xbox Live rather than about the 11th-hour desertion of his generals. Because Hitler has been bringing the laughs at least since the Beer Hall Putsch, the result was pretty funny, and it spawned a vast genre in which, simply through subtitle changes, Hitler rants about Jay’s replacing Conan, Hitler can’t get Miley Cyrus tickets, Hitler’s pissed off about getting bad seats for a Bruce Springsteen concert, etc.

Now, Constantin Films, producer of Downfall, has bestirred itself and begun filing DMCA take-down notices with YouTube. Naturally, the blogs of all political persuasions are going into orbit. In fact, the latest parody, by Brad Templeton (“EFF director, software architect and internet entrepreneur, skilled hobby photographer and burning man artist”), which is indeed pretty funny, shows Hitler ranting about all the parodies of his rant.

Cavanaugh, Templeton, and the other posters have nothing but ridicule for Constantin’s effort at self-protection. Cavanaugh assesses the merits of its legal case as zero, given the latitude given to parody under the doctrine of fair use, and does not even consider the possibility that Constantin has a moral case.

The existence of such unanimity is an irresistible target for any natural contrarian, so here are three points in response:

First, the legal arguments are actually not clear cut. Cavanaugh relies on a Supreme Court case that accepted as fair use a 2LiveCrew parody of Roy Orbison’s Pretty Woman, but there is a crucial difference: that parody took the tune and the cadence, but it did not take Orbison’s actual performance. No question, someone could get an actor to do a Hitler rant and add one’s own subtitles, but using a clip of the actual original is a further, and long, step. One can argue the fair use point  either way, but it is not a slam dunk.

Second, Constantin has weighty moral arguments. The original movie is a serious film described by Amazon as “nothing less than the disintegration of Adolf Hitler in mind, body, and soul. A 2005 Academy Award nominee for best foreign language film, this German historical drama stars Bruno Ganz (Wings of Desire) as Hitler, whose psychic meltdown is depicted in sobering detail. ” In sum, it is a serious film and the Hitler rant is a culminating dramatic moment, so the producer may well fear that parodies will destroy much of its potential value, in that anyone who has seen the paradies would be unable to view that scene without laughing.  Templeton disagrees: — “And while I thought I would be unable to watch the real scene with real subtitles without giggles, that did not turn out to be the case” — but why should the producer be forced to bear this risk? (A personal example: In my opinion, the people who did the musical Kismet, which appropriated the music of Borodin and added sappy lyrics (“Stranger in Paradise”) deserves a horsewhipping, because I cannot hear the music without having those damn lyrics run through my head.)

Third, the parodies destroy another potential source of revenue for Constantin, which is to sell the clip for people to use in making parodies. The clip is special, as Cavanaugh concedes twice over. He says “I’ve always suspected the appeal of Downfall parodies rests in the charisma of the great Bruno Ganz, whose rant never loses its effect no matter how many sets of subtitles you’ve read,” and he notes that the original Xbox parody has had 4.3 million views.  Well, the great Ganz did not see a penny from any of these take-offs, and YouTube and other sites that post the parodies collect money for ads. So why don’t Constantin, and Ganz, deserve the right to market the raw material of parody, if they so choose (the value destruction might outweigh the benefits, or course)? Anything that gets 4.3 million views has commercial potential; the question is how to get there from here.

As a thought experiment, imagine that the four-minute clip were posted on the iPad store as an app, downloadable for a buck, and with permission to make parodies in exchange for paying Constantin half of any revenue that is received from further marketing of such hybrids. This looks like a good business model to me. Would Cavanaugh, Templeton, and the others argue no, that everyone has a right to get it free?If so, they better tell Apple to shut its app store, because fully 3/4 of what is found there is for sale, not gift.