[llreader]

Again, from Ars Technica (which seems to have pretty good coverage of IP issues lately) an organization called Public Knowledge, which seems to have some overlap with the "Cyberlaw Clinic at Stanford and the Technology & Public Policy Clinic at UC-Berkeley" has proposed a new law called the Copyright Reform Act (CRA), which would modify the current specifications of fair use in US copyright law.

Edit: That quote is from the Ars article, their website says "Public Knowledge is a Washington, D.C.-based public interest group working to defend citizens' rights in the emerging digital culture."

Currently fair use is based on four factors, "the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work", with specific examples given in the law of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

The CRA would add three more specific cases to the law, "incidental uses, non-consumptive uses, and personal, non-commercial uses."

Incidental uses "involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use—for example, capturing music playing over radio when filming a family moment." Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, "do not directly trade on the underlying creative and expressive purpose of the work being used." In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

"Because they do not trade on the expressive or aesthetic aspects of copyrighted works," says the report, "they pose little threat to the core market interests of copyright holders that copyright endeavors to protect."

...

But it is the third proposal that might prove most controversial. "Personal and noncommercial uses" are said to "have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed."

I am not sure how these will be interpreted by the organizations that represent copyright holders, but the "non-commercial" clause will probably be the most controversial. However, this does not mean that anything that does not involve money changing hands is kosher. From the article:

The four factors still apply, and any non-commercial personal use that "sufficiently harms the copyright holder's market would not be fair."

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."

The full article is here, and I am not going to add a lot of commentary right now because I need to think about what exactly this would change.

On the face of it, it seems like a badly needed clarification of the law, now that "casual" and "incidental" types of copyright infringement are ubiquitous, as well as shifting some of the burden of proof back to the plaintiff in legal cases.

What say ye, O Mobile Readers?