Copyright law and fair use considerations is seldom in the mindset of many who take video with background music and post them on the web. Obviously, the many who do may not give time nor consideration how they are using the music which raises the issues of fair use considerations. Owners of music oppose videos with their music in the background without their permission.
While one sees it as seemingly not causing harm, copyright holders do. The copyright law however gives room for fair use. In California a suit was filed by Universal Music Corp. (UMC) against an individual who had posted a video with a song in the background. UMC owns the copyright on the song. This controversy has been eagerly followed by Google, Twitter, Tumblr and those opposed to the posting, i.e., Universal Music Corp, movie organizations, and entertainers, noting the importance of accurately determining what is ‘fair use’ in this digital era.
As the 9th Circuit said, Copyright Act does have a unique place for ‘fair use’ which allows it to be treated differently than most affirmative defenses. Copyright law and fair use considerations account for how fair use defense is commonly asserted by defendants in copyright actions. Such consideration for fair use is expected to be analyzed from the prospective of whether UMC had a good faith belief that the video did not constitute fair use.
The hinging issue going back to the district court is considering the aspect of fair use prior to issuing a nasty take down demand notice. Also worth noting, is that copyright law is not structured to foster censorship of what would be deemed as free speech. As the case continues, take down demands will be viewed with a jaundiced eye.