We recently wrote about the RIAA's new war
against software that can be used to record or download YouTube videos. As we noted, such software has substantial non-infringing uses, but the RIAA wants to ban it anyway. Michael Weinberg has a great response, in pointing out that just because something can be used illegally, it doesn't mean we ban it
It is possible to use a banana to rob a bank. It is also possible to use a phone to defraud people of millions of dollars. But we do not make possession of a banana or the use of a phone illegal. We make bank robbery and fraud illegal. We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services. It would be dumb to outlaw them just because someone could use them in a bad way.
That’s why the test that the Supreme Court identified in the famous Betamax case is so useful. As long as a technology is capable of “substantial noninfringing uses” we welcome it. Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.
On our last post about this, someone brought up the anti-circumvention issue, noting that if the software circumvents DRM, then under the DMCA it's illegal across the board. But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity "copyright infringement." Think about it: if you use this to make a perfectly legal recording of some content, then none of the rights covered by copyright law have been infringed. And yet it's still illegal solely
because of the circumvention? That makes no sense. How can it be illegal if no illegal copy was actually made?