So, here’s my take: It’s not the fans who are violating the DMCA, but the hosting sites, since they are the ones making money from our fan vids. I am with EMI on this:
EMI’s suit will likely revolve around two legal issues. First, are video-sharing sites — which organize, categorize and profit from user-uploaded copyrighted content — liable for copyright infringement? While the Digital Millennium Copyright Act includes “safe harbor” provisions for sites that promptly remove videos upon receipt of takedown notices from content owners, copyright owners claim that the DMCA, enacted years before video-sharing sites even existed, was never intended to protect sites that built businesses around rampant, unlicensed use of others’ intellectual property, especially when they encourage users to upload copyrighted content. (EMI also alleges that Vimeo itself uploaded videos containing its music, activity that isn’t covered by DMCA safe harbors.)
The suit however, does not cover the fanvids that are created, by say, fans of The Colbert Report, The Daily Show or even, the O’Reilly Factor (Disclaimer: I have made fanvids for all three shows. Hey, even O’Reilly needs…. uh… uhm….) But, since we the creators of these videos are not the ones profiting….