Fair use

Copyright law and the doctrine of "fair use" has become a hot topic in today's digital, interconnected world. Copyright holders have been flexing their muscle as they try to contain the unauthorized distribution of their work (not always successfully; see my earlier post on DRM). The rights of copyright holders is subject to certain limitations. An important limitation is codified in the doctrine of fair use. Section 107 of the Copyright Act says:

...the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Unfortunately, the difference between "fair use" and infringement is not always clear. Today something quite interesting happened in the world of copyright and fair use. Chris Knight writes about a video he posted on YouTube. Viacom claimed copyright over this video and sent YouTube a "take down" notice. YouTube obliged and sent Mr. Knight a notice saying that the video was being taken down. The only problem was that the video in question, produced by Viacom subsidiary VH1, was produced---without permission---from a video originally made by Mr. Knight! Mr. Knight is most aggrieved:

Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!

I wonder which of these uses would be considered "fair use". Mr. Knight raises another interesting question:

What does this mean for independent producers of content, if material they create can be co-opted by a giant corporation without permission or apology or compensation? When in fact, said corporations can take punitive action against you for using material that you created on your own?

I wonder what the Electronic Frontier Foundation (EFF) would have to say about this.