Additionally, the video was educational (it demonstrated how to create something), further bolstering the claim of fair use. The NYT is entirely out of line with the C&D, and it is particularly troubling that a newspaper -- which frequently engages in fair use, frequently reproducing material as part of their journalism and their criticism -- would send such a letter.
I disagree, this video was educational about his product, so there was a commercial interest behind it.
As such, this isn't a fair use case; there have been cases in the past where copy-shops copied parts of books for educational purposes, but because there was a commercial intent behind it US courts ruled that not to be fair use.
See: Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).
The difference is that his product does not compete in with the New York Times; it may be valuable to the Times' competitors, but nobody will watch his video and then not read the Times article as a result. The criteria for judging fair use include the potential impact on the market value of the copyrighted work; in this case, it seems that the impact is basically nil, because there are two separate markets. It is not about commercial intent, but rather about the effect in a particular market (and even that is not cut-and-dry).
The case of textbook publishing is different, because the copies compete with the original in the same market.
Really though, my point was not about the educational nature. Even if we assume there is no educational value to the video, it is still a case of criticism/commentary, which is still fair use. The author is not in any way reducing the value of the Times article. The article was not copied in full. These are all things that support the claim that this is fair use.
While commercial interest is a factor in the determination of fair use, it is not an automatic disqualification of the defense. Negative reviews, for example, are generally protected by fair use, including when there's a commercial interest behind them.
IANAL, but scrollkit appears to actually be a startup (judging from their about page), meaning that the video was more along the lines of a demonstration video of a product or even a advertisement than an educational video.
My understanding of the rational for "fair use" is use for the benefit of the public good and explicitly not for the commercial purposes, this seems to me to be very commercial.
Look at the actual definition of fair use. There is no requirement that the use be non-commercial, only criteria that include whether or not the use was commercial.
http://www.law.cornell.edu/uscode/text/17/107
Additionally, the video was educational (it demonstrated how to create something), further bolstering the claim of fair use. The NYT is entirely out of line with the C&D, and it is particularly troubling that a newspaper -- which frequently engages in fair use, frequently reproducing material as part of their journalism and their criticism -- would send such a letter.