Disney, CBS, Microsoft, Fox, NBC, Viacom, Dailymotion, MySpace and Veoh Networks announced so-called User Generated Content Principles that appear aimed at stifling fair use. The announcement calls for the "implementation of state of the art filtering technology with the goal to eliminate infringing content on (user-generated content services), including blocking infringing uploads before they are made available to the public."

The Cartel's website can be found here.

Even if you accept current notions of copyright law, here is the biggest problem I have with this concept - It clearly anticipates that media companies will have a primary hand in defining what "fair use" is. This of couse is flat-out unacceptable. The entire concept behind "fair use" is that such "use" will be allowed even in face of express opposition by the copyright owner. Fair use is never "accommodated" as the Cartel suggests. It is instead superceded over express objections to the use of the material.

This is entirely unworkable since "fair use" is ultimately only defined by a court on a case-by-case basis after litigation has been brought forth. Even lawyers can never tell you if something is "fair use" or not. They can only make best guesses of what a court will decide (though their guesses are often disguised as conclusions based on their own biases of what they think fair use ideally ought to be).

Here are 5 different scenarios that all involve the same act of downloading a song:

1. To keep in my personal music library after being exposed to the song elsewhere.

2. To sample the artists work to determine if I might want to purchase it or other works at a later date.

3. To explore lyrics or aspects of the work for a journalistic/scholarly essay that I am working on regarding a history of the music genre.

4. To replace a defective CD that I bought in a store.

5. To replace a purchased CD that I lost or accidentally damaged on my own.

Which of these are "fair use"? The answer is - NOBODY KNOWS! (at least until you a court ruling in your particular case.) Recent court cases would strongly suggest that scenarios 1 & 2 probably won't be considered fair use, but even then, there might be specific facts in individual cases that might lead a court to rule otherwise (and such a ruling would have little use or practicality in terms of establishing precident for future cases with differing facts - even when the differences are hair-splitting). "Fair Use" can be an infinitely flexible concept that judges can use and abuse according to their personal tastes. Any lawyer who tells you that there is a bright line legal rule that prohibits any downloading of songs for personal use under all circumstances is simply smoking crack folks. The odds are certainly stacked against such defendants these days, but there is no bright line rule.

This much is certain, however: Media companies would consider all 5 scenarios to be copyright infringement with no "fair use" invovled. If they are the ones directing websites such as Youtube to remove content based on their edict, then their declaration that "fair use" ought to be "accommodated" is a hollow promise indeed.