[This article was contributed by Joe 'Zonker' Brockmeier]
If at first you don't succeed... Rep. Zoe Lofgren
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
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:
The broad exemptions to the DMCA proposed by Representative Lofgren
would undermine the core purpose of the Act and violate the protections
that serve as the foundation of innovation and discovery for legitimate
copyright owners. In the digital age, broadly accepted technological
measures must be available and adhered to by consumers and enterprises
to curb piracy and its economic consequences...
Of particular concern, provisions of this legislation allowing the
disablement of technological protection measures on copyrighted
materials would provide safe harbor for pirates who could easily claim
that the 'intent' of their actions were legal even if it resulted in
knowingly unlawful infringement and economic loss to copyright owners.
Interestingly, while the BSA comes out against the BALANCE Act, some of its
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
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.
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