Proposed changes to Fair Use in copyright law

[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?

[Elfwreck]

'Bout time.

"Personal, non-commercial" uses would also help prevent future stupid lawsuits about cellphone ringtones, or whatever other use strikes publishers/production houses as infringing.

I await Disney and the RIAA's combined diatribes about how this proposed change would destroy all commercial enterprise in the western hemisphere.

[dmaul1114]

Yeah, my university is being sued for fair use violations related distributing copies of articles, one chapter of a book etc. to students for course use, use of material in course lectures etc. University is arguing it's fair use since it's factual information and not harming the sales as students wouldn't buy the book to read one chapter etc.

I'm very interested to see how that case, and others like the one in the post above turn out.

I'm VERY anti-piracy. But fighting piracy shouldn't come at the expense of legitimate uses of the material at the individual level, in educational settings etc. They have to find ways to fight the losers who are distributing copyrighted material for profit (or giving it away on the net), those illegally downloading songs, movies, books etc. instead of buying them etc.

[Pardoz]

Originally Posted by Elfwreck

I await Disney and the RIAA's combined diatribes about how this proposed change would destroy all commercial enterprise in the western hemisphere.

A second advantage of reasonable changes to the copyright laws.

[llreader]

Originally Posted by Elfwreck

'Bout time.

"Personal, non-commercial" uses would also help prevent future stupid lawsuits about cellphone ringtones, or whatever other use strikes publishers/production houses as infringing.

I await Disney and the RIAA's combined diatribes about how this proposed change would destroy all commercial enterprise in the western hemisphere.

Yeah, I tend to think that all parties need to have their voices heard as these issues are hashed (or re-hashed) out "in the digital age", as they say. So far the discussion has been very lopsided.

[Shaggy]

Originally Posted by Elfwreck

I await Disney and the RIAA's combined diatribes about how this proposed change would destroy all commercial enterprise in the western hemisphere.

Why would they waste time talking, they have a lot more money than Public Knowledge does.

[Shaggy]

Originally Posted by llreader

Yeah, I tend to think that all parties need to have their voices heard as these issues are hashed (or re-hashed) out "in the digital age", as they say. So far the discussion has been very lopsided.

No kidding. The last time the white house had a "round table" discussion on this issue they only invited members of the content industry.

[sianon]

Originally Posted by dmaul1114

Yeah, my university is being sued for fair use violations related distributing copies of articles, one chapter of a book etc. to students for course use, use of material in course lectures etc. University is arguing it's fair use since it's factual information and not harming the sales as students wouldn't buy the book to read one chapter etc.

I'm very interested to see how that case, and others like the one in the post above turn out.

There was a case here in Australia about 17 years ago where the Victoria University of Technology (now known as Victoria University) was taken to court for the exact same issues. They were proiducing course booklets of reccomended readings, never more that one chapter of a book. The university won the case and it is now standard practice to produce such course booklets.

[dmaul1114]

Originally Posted by sianon

There was a case here in Australia about 17 years ago where the Victoria University of Technology (now known as Victoria University) was taken to court for the exact same issues. They were proiducing course booklets of reccomended readings, never more that one chapter of a book. The university won the case and it is now standard practice to produce such course booklets.

Yeah, this isn't even producing booklets. To do that, you have to get approval from the copyright holder as the bookets are sold--school has to recoup costs for printing the booklets.

The case here is for stuff like putting PDFs of chapters up on the course site on uLearn for students to download, showing videos in class etc.

I'm pretty confident the university will win this case as well though.

[Shaggy]

Originally Posted by dmaul1114

The case here is for stuff like putting PDFs of chapters up on the course site on uLearn for students to download, showing videos in class etc.

They should just point students to filesharing sites that have the material. It's effectively the same thing.

[dmaul1114]

Originally Posted by Shaggy

They should just point students to filesharing sites that have the material. It's effectively the same thing.

Well, the main reason I think the school will win the case is a lot of the material is stuff students can get freely at the library and/or on the libraries website (most every decent scholarly journal is fully available electronically now).

The only catch will be making copies of a chapter of a book etc. But I think they can win that as it's a pretty reasonable argument that providing one chapter of a book won't stop any purchases. No professor is going to ask students to pay for a book to read one chapter, so there aren't lost sales. Hell, especially for graduate students, some may be interested in the book and want to read the rest and order a copy.

But pointing to file sharing sites is a huge no-no. With the focus of universities in educating students not to do illegal file sharing, there's a good chance a prof is going to have major consequences if they direct students to download something illegally.

And I'd never do it for moral reasons as I think one should buy material if they want a whole book etc. I just think fair use laws need to be clarified to allow for legitimate educational use of materials that aren't being stolen, or bootlegged and sold etc.

[llreader]

There are some interesting comments on that linked article, one of the most thought provoking, for me, was by a user named Frosty Grin:

No, it isn't defined through the four factor test because:

a) the list of factors is nonexclusive;

b) the four factors are very hazy;

c) the importance of every single factor is undefined.

For example, it's pretty obvious that criticism can be commercial in nature and have a negative effect on the market value of the copyrighted work. But it doesn't mean that negative criticism is against the law.

He has a very good point that even with the four-factor test, there is a lot of room for interpretation as to what is fair and what isn't. It is especially troubling that the "fair user" very often can't be sure if what they are doing is legal or not, because the definitions are so fuzzy. In any case, they say that this is the first in a series of proposed legal changes from this group, so I subscribed to their mailing list. Hopefully they will have some success in clarifying the law.

[dmaul1114]

Yeah, that's the issue. We have a checklist regarding the 4 factors etc. here that we're supposed to go through before giving articles to students etc.

But the items on it are so vague and subjective to be pointless. The fair use law really needs to be clarified and made a lot more specific to leave out so much ambiguity. Say how much (what % of chapters etc.) of a book can be given to students under fair use etc.

[Elfwreck]

Originally Posted by llreader

It is especially troubling that the "fair user" very often can't be sure if what they are doing is legal or not, because the definitions are so fuzzy.

Some lawyers have apparently considered challenging the whole law on that basis, on the grounds that it's unconstitutional to have crimes that can't be identified before a court rules on them. (The same concept is occasionally mentioned in connection with "obscenity" trials.)

There's something wrong with, "you can't know whether or not you've broken the law until after someone sues you or the state prosecutes you."

[Shaggy]

Originally Posted by dmaul1114

But the items on it are so vague and subjective to be pointless.

That's exactly how the people who wrote the law wanted it.