whose use is fair use?

GeeWhy forwards this link to an NYT article on copyright wars between Google-owned YouTube and users who post home videos that, for example, may include a cover of a copyrighted hit. The story suggests that in the digital age, the definition of "fair use" is in flux.

From the article:

The situation has raised anew questions about the meaning of fair use under copyright law in the context of the digital age, when anyone can easily excerpt copyrighted works and distribute the result in a manner that is sometimes hard to identify as being a commercial product.

Last year Dustin McLean, who works as an animator on Current TV’s comedy show “Super News,” posted a video of A-Ha’s 1980s hit “Take On Me.” But it was Mr. McLean singing, not the real lyrics but about what was actually happening in the video. He got two million views in three months, and a new genre was born, called “literal videos.”

“It was just a silly idea,” he said. When the video was removed, he said, “fans started e-mailing me and asking, ‘why did you take down your video?’”

His videos can now been seen on funnyordie.com or his own site, dustfilms.com, and so far he has been free from the copyright police.

The law provides a four-point test for the fair use of copyrighted works, taking into account things like the purpose, the size of an excerpt and the effect the use might have on the commercial value of the actual work.

The body of law is ever-evolving, and each era and technology seems to force new interpretations. In the 1960s, for example, the Zapruder film, the home movie that captured the Kennedy assassination, was bought and copyrighted by Time magazine. But a judge denied that it could be a copyrighted work because of its value to the public interest.

But GeeWhy sees this particular clash in a different light, suggesting it gets close to the crux of the problem responsible for the current newspaper death march. He writes:

This story is often framed as the old fossils in the music
industry not understanding the digital age and attacking innocent kids
who post their singing on youtube with no desire to make money off it.
But it's really an issue between the industry and google/youtube, which
makes an estimated $500 million off ads connected to the youtube
uploads. The record industry is trying to come to some sort of financial
arrangement with google, just as the newspaper industry should be trying to come to some sort of agreement with them. As I've said many times, Google is making a fortune off free content from the music industry and journalism. They then cleverly try to make this an issue of innocent bloggers/youtubers getting harassed by big industries. (Groups like the Electronic Freedom Foundation play right along with their dubious claims that everyone will make money if only everything were free; they use the lame argument that people viewing or reading something somehow magically translates into ad dollars.) But google just doesn't want to pay for their free content. The press is not doing a good job of framing this issue. Take this article...it starts with an anecdotal lede about a cute 14 year old getting threatened with a lawsuit. It's not until the end of the article that the real issue is touched on — google making money off content they get for free and don't want to pay for.

From a PR standpoint, this is a horrible situation for newspapers and
the music industry. Both have enjoyed near monopoly status. Both have
made horrible business decisions. And nearly all consumers now have much better alternatives than the old days. (This nostalgia for the old days of corporate newspapers is a bit much; most papers were/are pretty awful.) But this should really be framed as a battle between artists and writers, most of whom make very little money, versus Google. Not corporate media versus 14 year olds singing songs on youtube.