Copyright Meet Speech

Check out this article on some of our online service/social networks and the impact that private companies have on our free expression by clicking here.  Certainly the first amendment doesn’t give us much protection in private areas like shopping malls or the private homes of others (or even the sidewalk around the back of a Post Office, for that matter, or a military base if you are an anti-war protester), but online systems like youtube and myspace represent a whole new frontier, entirely governed by private terms of service contracts with individual users.  The Supreme Court has held, as far as copyright is concerned, that the rules on fair use balance an individual’s free expression against the property interests of the copyright holder.  Is fair use a sufficient standard, however, when the determination of fair use is entirely in the hands of an editor at a web site operator?  Especially when there is no clear path to appeal an adverse decision of the operator, and no constitutional remedy?