No, that's not how the system works. The system works around a concept called "synchronization rights", which pertain to the synchronization of sound and picture - which is exactly what's going on here.
Selling synchronization rights is a specific (and highly lucrative) line of business for artists and music publishers. That's what they're fighting to protect. They don't care if this was supposed to be commercial or not, any more than they care whether a commercial producer using their music in a feature film ends up making or losing money on the picture. They sell synchronization rights. You want 'em, you buy 'em. Or you get sued for infringing them. Those are your choices, that's their perspective in a nutshell, and they recognize no exceptions for "personal use". Right or wrong, the law is 100% on their side. Moreover, the fact that this video went viral and started producing actual ad revenue means that it is - regardless of intention - a clearly became commercial piece of media.
Again, the entire situation is completely outside anything that anyone imagined in the pre-internet age, which is when the market for synchronization rights was established. The culture is developing is ways the law didn't anticipate, and which the law, to my mind, should not obstruct. However, I don't think it's smart to pretend this isn't a synch rights issue when that's exactly what it is.
If EFF's object is to expand the scope of Fair Use to cover situations like this, and to create a precedent that demands publishers consider Fair Use before issuing take downs, then the issue of synchronization rights must be squarely addressed, not evaded by pretending that the audio track is incidental when that's demonstrably not the case.
Selling synchronization rights is a specific (and highly lucrative) line of business for artists and music publishers. That's what they're fighting to protect. They don't care if this was supposed to be commercial or not, any more than they care whether a commercial producer using their music in a feature film ends up making or losing money on the picture. They sell synchronization rights. You want 'em, you buy 'em. Or you get sued for infringing them. Those are your choices, that's their perspective in a nutshell, and they recognize no exceptions for "personal use". Right or wrong, the law is 100% on their side. Moreover, the fact that this video went viral and started producing actual ad revenue means that it is - regardless of intention - a clearly became commercial piece of media.
Again, the entire situation is completely outside anything that anyone imagined in the pre-internet age, which is when the market for synchronization rights was established. The culture is developing is ways the law didn't anticipate, and which the law, to my mind, should not obstruct. However, I don't think it's smart to pretend this isn't a synch rights issue when that's exactly what it is.
If EFF's object is to expand the scope of Fair Use to cover situations like this, and to create a precedent that demands publishers consider Fair Use before issuing take downs, then the issue of synchronization rights must be squarely addressed, not evaded by pretending that the audio track is incidental when that's demonstrably not the case.