Decades later, the Nazis, or at least the estate of a long-dead Nazi, gets a win. In a case we had written about months ago, in which the estate of infamous Nazi propagandist Joseph Goebbels sued Random House Germany over the inclusion of quotes from Goebbels’ diary, claiming copyright infringement, we raised the story up as an example of why fair use rights are necessary for the sake of scholarly work. The idea that the estate of an historical figure could censor, or even put up a toll booth, between history and those that would learn from it has to be about as good of an example of what the originators of copyright didn’t want as any. The whole point was to proliferate knowledge and the arts. I’m not sure why a Nazi’s diary should even be afforded such protections in any respects, nevermind the estate of the dead Nazi be allowed to control the dissemination of history in this way.
The German courts appear to disagree, however, having found in the favor of the Goebbels estate.
The Munich district court ruled in favor of the estate’s claims, although it pointed out that the royalty rights to Goebbles’ writings would expire at the end of 2015, 70 years after his death. Random House intends to appeal the case at the German Supreme Court. If it is successful, [Random House’s attorney Rainer] Dresen says, other media organizations could be examining the royalties they have been paying the Goebbels estate for their publications. “The court’s ruling would declare the estate’s position null and void, necessitating refunds,” he says.
As Mike noted in the last post, there are so very many arguments against why this ruling shouldn’t have occurred. The first is that Germany ought to have something like Fair Use protections, which would have tossed this whole thing out immediately. Does Germany really want the estate’s of historical figures to control historical scholarship in this way? Do we really need to trot out the whole “those who don’t learn from history are deemed to repeat it” mantra?
And beyond that, it’s not even clear that the Goebbel’s Estate has the rights it’s been selling anyway. When the US seized the original publishing house, it took control of the publishing rights for Mein Kampf, so why not Goebbels’ diary as well? On top of that, it turns out Goebbels may have sold his own publishing rights to the Nazi regime, meaning the Bavarian government would now be the ownership party, not his estate. If that’s the case, the Bavarian government is playing very, very dumb.
Dresen has pointed to evidence from a journal entry from 1936 when Goebbels sold the rights to Nazi state publishers. He believes this should transfer the copyright to the Bavarian government. “Bavaria is not interested,” he told Newsweek, “‘Show me the author’s contract’ they said, knowing the archives were destroyed at the war’s end.”
Either way, pending the appeal, count this as a loss for historical scholarly work. And from a court in a country that really, really should know better than this.