3 Strike Limit to Fair Use

Most of those who are in the habit of contributing to the mass of useful information and mind numbing distractions on the Internet are generally secure in the promise of the "fair use" doctrine - that the public is entitled to freely use portions of copyrighted material for purposes of commentary and criticism. One prime example of fair use at work is the abundance of videos on YouTube utilizing snippets from copyrighted movies and songs and uploaded by regular folks who feel they have something constructive to share with the rest of the world. Kevin Lee, a film critic and a blogger, was one those guys who relied on the belief that user-generated content = free speech. After three DMCA notices/ warnings, his account was closed by YouTube. While admitting that the first two notices may have arisen from videos bordering on infringement, he claims that his "online essay video" did not merit a third strike. YouTube has adopted a hands-off policy, saying that their job is merely to pass on the notice from the copyright holder and that they will not expose themselves to lawsuits by deciding whether a fair use claim is indeed justified. This, of course, leaves the critic/ commentator/ "regular guy with something to say" wondering if his next masterpiece will ever make in cyberspace since it seems like the work can be taken down immediately based on some unknown, unilateral criteria. This system will be problematic in the real world, because then the user can actually have a shot at proving purpose or transformative effect before the copyright owner can prohibit use.