Going for BALANCE

[This article was contributed by Joe 'Zonker' Brockmeier]

If at first you don't succeed... Rep. Zoe Lofgren (D-Calif.) reintroduced the awkwardly-named Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act last Monday. The bill was shot down last year in committee. Rep. Rick Boucher (D-Va.) is co-sponsoring the bill. Boucher has been outspoken on the need for reform of the Digital Millennium Copyright Act in the past, though he seems to be taking a back seat on this one (perhaps because he has a DMCA reform bill of his own on the table).

The BALANCE Act does not do away with the DMCA, as many in the Linux community would like to see. Instead, it attempts to amend the DMCA to allow for the exercise of fair use. The act notes that the DMCA "failed to give consumers the technical means to make fair uses of encrypted copyright works."

Not surprisingly, the Business Software Alliance (BSA) and the Motion Picture Association of America are against the BALANCE Act. Jack Valenti is quoted in the Mercury News as saying that the legislation "puts a dagger in the heart of the Digital Millennium Copyright Act," which is pretty much what everyone outside the entertainment and proprietary software industries would like to do.

The BSA's press release says that Lofgren's proposed exceptions go too far:

Interestingly, while the BSA comes out against the BALANCE Act, some of its member companies (i.e. Intel and HP) have been quick to endorse it and other bills like it that seek to undo some of the damage of the DMCA and the entertainment industry's relentless attempts to disallow fair use.

A reading of the bill shows that the BSA's position is a stretch, at best. The bill would ensure rights to "reproduce, store, adapt or access the digital work" for archival purposes or to "perform or display the work, or an adaptation of the work, on a digital media device, if the work is not so performed or displayed publically."

Circumvention of copyright protection would be allowed only if "such an act is necessary to make a noninfringing use of the work" and if "the copyright owner fails to make publically available the necessary means to make such noninfringing use without additional cost or burden to such person." In short, the bill seems to say that somebody could legally use or create something like DeCSS only if the movie studios do not provide, free of charge, a way for them to play DVDs on their devices.

The BSA is right about one thing: the BALANCE Act may very well hinder shrinkwrap licensing, which the software industry loves so much. The act would not allow enforcment of "nonnegotiable license terms...to the extent that they restrict or limit any of the limitations or exclusive rights" under the act. In other words, movies studios and software companies could not apply shrinkwrap licenses that disallow backup copies or circumvention that allows fair use. It's hard to see how that would "stifle industry growth and limit consumer choices."

So far, however, the DMCA hasn't been used to "promote continued innovation." It's been used to stifle competition and prevent fair use. Right now, the bill is in committee. The odds of passing the bill are a long shot, but one can always hope that this bill, or one very much like it, will make its way through Congress soon.