a perpetual work in progress
on the balance act
Posted: 2003-03-14 10:31
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Author: Phil Gengler
Section: Stuff

Rep. Lofgren's BALANCE (Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act seeks to make amendments to Title 17 of the US Code, which governs copyrights. There are a few points of interest about the Act, some good, some bad, and I will elaborate on these as I come to them.

Section 2 establishes what copyright is and why we need it, and that the DMCA was to secure copyrights in a digital world. It is pointed out, however, that the DMCA has been used in ways not intended, namely that it prevents lawful use of legitimately purchased material. Cited is a report to the House's Judiciary Committee (along with the DMCA), stating that "an individual [should] not be able to circumvent in order to gain unauthorized access to a work, but [should] be able to do so in order to make fair use of a work which he or she has acquired lawfully." This section closes by declaring that consumers should not all be treated as though they were criminals.

Section 3 begins the amendments to Title 17. Situations of legitimate use are laid out, so that they are protected by the law. Any nonnegotiable license on copyrighted material that went against the aforementioned situations are declared to be unenforceable (though it is unclear whether this means the whole license, or just the specific terms in conflict with the protected uses). The term 'digital work' is defined, and an important exception is made. Simply, the definition is that a digital work is any copyrightable work in a non-analog form, with the exception of computer programs. This exception is important, as it leaves a very large loophole in the Act, which I'll discuss later.

Section 4 covers the doctrine of First Sale with regard to digital material. First Sale means that if you bought something, you are able to sell it (without keeping any copies or parts) without requiring permission from the original owner/copyright holder.

Section 5 allows for circumvention of protection mechanisms, provided certain conditions are met. If a copyright holder releases a work with a protection mechanism, and does not 'make available' a means to enabling non-infringing use of the work (or obtaining such a means is an additional cost or burden on the consumer), then circumvention of that mechanism is explicitly allowed for the purposes of non-infringing uses. The meaning of 'make available' is missing here, and this provides another loophole. The section also allows import, distribution, etc. of tools which circumvent protection to enable non-infringing uses.



As I mentioned, there are 2 major loopholes in the Act, that could be used and render the Act's protections useless.

Firstly, the exception of a 'computer program' as a digital work covered by this act is very significant. It is possible that any copyrighted content will no longer be distributed as a file, and viewed with a separate application, but instead distributed only as an application containing the content and the means to view it. Such a bundle would not be covered by any of the provisions of this Act.

Secondly, the lack of a definition for 'mak[ing] available' means to non-infringing uses could also be used to work around the Act. The additional qualifiers that such a means must not put any additional cost or burden on the consumer somewhat addresses this, but the terms 'available' and 'burden' are vague. What constitutes 'made available', and what exactly constitutes a 'burden'? Publishing tools for a single platform (possibly a very obscure one) could be considered 'available', and if obtaining and installing the tool is simple, wouldn't constitute a burden, but the tool itself would still have a very sharply limited utility.

This Act is a good first step towards addressing the myriad of problems created by the DMCA, but it is not a solution. With the loopholes it has, it is of very limited benefit to the general public, and is no significant threat to copyright holders.


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