Reclaiming Copyright from the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody

Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody. This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler\u27s breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The user then adds English subtitles, creating a video that is, or is intended to be, humorous, with the humor largely derived from the incongruous and anachronistic content of the subtitles as well as from the inherently transgressive use of the original content for comic purposes. This article examines whether the Downfall videos, and other similar works, are more transformative than derivative under 17 USC section 107, as well as whether the use of the copyrighted material, even if otherwise derivative, is fair use under 17 USC section 107. The article also considers whether the videos are parody within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness

Property law is, in some areas, dangerously out of step with property expectations. Property—the idea that a place, object, or idea can belong to a person—is at the root of the world’s economies and thus also at the root of much of its laws. Property is neither solely a creature of positive law, nor of some abstract natural law with a moral underpinning, but rather may be biologically determined, much as Noam Chomsky proposed for languages in Aspects of the Theory of Syntax.1 The idea that ownership is at least behaviorally, and perhaps to some extent instinctively, determined has been extensively explored in academic literature2 and in popular works including Michael Heller’s and James Saltzman’s recent bestseller Mine!3 This Article takes a broad look at the possible biologically or behaviorally determined origins of personal, real, and intellectual property, as well as property in one’s person and reputation. The legal system’s treatment of these four categories of property spans a spectrum. The treatment of property in chattels is most congruent with behavioral norms. The treatment of real property is still mostly congruent, while the treatment of intellectual property is sporadically congruent and the treatment of property in one’s person and reputation are not congruent at all. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. Part I of this article looks at the right to exclude, and Parts II through V look at the nature of the innate urge to exclude for each of these four categories of property in turn

From Schweizerhalle to Baia Mare: The Continuing Failure of International Law to Protect Europe\u27s Rivers

Beginning on January 31, 2000, at least 100,000 cubic meters of highly polluted water escaped from a tailings dam at the Aurul gold mine in Baia Mare, Romania. The water flowed into the Somes, Tisza, and Danube Rivers, causing enormous environmental damage. Most of the damage occurred in Hungary, downstream from Baia Mare. Hungarian politicians called the spill “the first, most serious environment[al] catastrophe in the 21st century,” and “the worst ecological disaster in central Europe since Chernobyl in 1986.” More striking than the resemblance to the Chernobyl disaster, though, was the resemblance to another 1986 environmental catastrophe: the Sandoz warehouse fire at Schweizerhalle, near Basel, Switzerland, which released over 10,000 cubic meters of highly contaminated water into the Rhine.4 In each of these instances, an international environmental legal regime ostensibly protected the affected river system. However, international law failed to prevent or reduce the impact of the accident in each case. Fourteen years after the Sandoz spill, Europe\u27s river systems remain unacceptably vulnerable to catastrophic chemical accidents. This article explores the growth of the environmental regime of one such system, the Danube basin, and the weaknesses revealed by the Baia Mare accident

Environmental Damage Resulting from the NATO Military Action Against Yugoslavia

During the 1999 war between NATO and the Federal Republic of Yugoslavia, NATO targeted and destroyed chemical plants and storage facilities at Pancevo, Kragujevac, and elsewhere. A United Nations inspection team found that the NATO attacks had caused measurable, but not catastrophic, environmental damage wityin the territory of Yugoslavia. This article explores the historical evolution and current status of the body of law regarding protection of the environment during wartime, as well as the legality of NATO\u27s actions. It concludes that NATO probably did not violate international law as it currently stands. However, the postwar reactions of states, including the NATO member states, may show a growing intolerance for environmentally destructive military tactics. Chemical plants, in particular, may in the future be proscribed as ultrahazardous targets, as dams, dikes, and nuclear power plants are currently

Of Charities and Clawbacks: The European Union Proposal on Successions and Wills As a Threat to Charitable Giving

In the United Kingdom, and to a lesser extent the United States, an inter vivos gift, once given, cannot be reclaimed by the giver\u27s heirs. In civil law countries the situation is quite different: Not only spouses, but issue and in some cases even ascendants, are entitled to a forced share of a decedent\u27s estate--and these forced shares are assessed against a notional “estate” that includes the testator\u27s inter vivos gifts. If the total of these forced shares exceeds the amount actually available in the decedent\u27s estate at death, the recipients of the gifts, or their successors, may be forced to make up the missing amount. Clawbacks of this nature might have remained relatively insignificant, but last year the European Union undertook, indirectly, to expand their reach dramatically. The EU proposal, in theory, addresses only conflict of law rules; in practice, if adopted, it will threaten not only existing trusts and charitable gifts in the US and UK, but may also reduce future philanthropic giving. The UK, to date, has opted out of the proposal, and the US is not directly affected; given the large number of US and UK citizens with assets in continental Europe, however, and vice versa, it remains a concern. The recent European Union proposal to bring about a more uniform body of law governing choice-of-law and related issues in international inheritance cases is perhaps, a necessary response to the increasingly international nature of the EU\u27s (and the world\u27s) inhabitants and their assets. As written, though, it is rather heavily tilted toward the civil law values of continental Europe and threatens to collide jarringly with common law traditions, in particular the Anglo-American fondness for trusts and charitable giving. This article provides a look at these different traditions, and then examines the relevant inheritance law provisions of EU member states, the UK, and the US before looking at the proposal itself