What's legal and what's fair: two different things

From today's San Jose Mercury News (Merc illustration): YouTube copyright fight shows fair and legal different.

The column was insightful, even if it could have expressed a bit more forcefully how out of whack copyright law is with the realities of the Digital Generation. It recounts the story of  Chris Knight, an independent filmmaker and blogger in North Carolina.

During an unsuccessful run for school board, he made a goofy campaign commercial that spoofed the original "Star Wars" film. The one-minute television spot portrayed Knight as a Jedi warrior - complete with homemade light saber - who promised to take on the Death Star of government bureaucracy to save the children of Rockingham County.

Knight uploaded his video to YouTube, a unit of Google, in part to make it easy to embed in his blog (http://theknightshift.blogspot.com).

Someone over at VH1, a cable channel owned by media giant Viacom, stumbled on the clip and thought it was entertaining enough to mock on an episode of the TV show "Web Junk 2.0." (You can see both versions at blogs.mercurynews.com/vindu.)

Viacom never contacted Knight before using his work. It didn't need to because the company wasn't copying it, but instead excerpting it and adding comic commentary.

Knight didn't care. He loved his 58 seconds of fame. "I was really honored," he said.

So he did what anyone would do: He copied the VH1 segment from his digital video recorder, put it up on YouTube and blogged about it. ...

Viacom asked YouTube to take down the clip under a provision of the Digital Millennium Copyright Act, and YouTube complied. ...

On Friday, Knight formally challenged Viacom's move, claiming he has every right to post the video that VH1 made from his video.

In the lingo of copyright lawyers, Knight argues that he made "fair use" of Viacom's clip, just as the company made fair use of his commercial by making fun of it on TV. ...

Alas, under the law, Knight is wrong - even though his argument makes sense.

Viacom based its clip on Knight's work, but the show's commentary and editing made it something distinct, with its own copyright protection.

Legally, that means Knight can't post Viacom's clip without permission unless he adds something that would create yet another video - in effect, a commentary on Viacom's commentary.

That's likely correct -- and shows the disconnect between copyright law and digital culture. Youtubers, brace yourselves for a harsh dose of legal reality.