I Can Use A Banana to Rob a Bank: Why We Don’t Ban Things Just Because They Can Be Misused
I Can Use A Banana to Rob a Bank: Why We Don’t Ban Things Just Because They Can Be Misused
I Can Use A Banana to Rob a Bank: Why We Don’t Ban Things Just Because They Can Be Misused

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    Earlier this week, YouTube-MP3.org announced that it had received a letter from YouTube essentially asking them to shut down.  YouTube-MP3.org was a site that allowed you to strip audio from a YouTube video and save it as an MP3.  Yesterday, it came to light that CNET had received a similar request from the RIAA to remove software from its popular Download.com site that performed the same purpose.  These requests are dumb.

    Software That Downloads YouTube Videos Has Many Legitimate Uses

    This is not idle speculation: we use this software here at PK all the time.  Many members of Congress regularly release videos on YouTube.  Beyond that, many important Congressional events are only available in places like C-Span.  We regularly incorporate these clips into our own videos.  And the best way (many times the only timely way) to get those videos is to use a tool like those hosted on Download.com.

    The video-to-MP3 services also serve an important purpose.  To name an immediate example, every day here in Washington people are hosting great roundtables, panel discussions, and talks.  In a perfect world I would be able to go to all of them, but that is not always possible.  I also do not always have time to sit down and watch the video.  But I do have time to listen on my walk to work and as I wander around the city on my way to meetings (anyway, if you have seen one group of people sitting in front of an audience, your imagination can fill in the visuals for just about any DC panel).

    This Software is No Different than a DVR or Taping Songs off the Radio

    Even most of the uses that specifically concern the RIAA are probably not illegal.  These services and software are essentially functioning as a DVR for YouTube.  If I am allowed to record music videos from MTV (or MTV Jams or wherever music videos are actually being played on TV) on my Tivo, it is hard to think of a legal principle that prevents me from recording music videos from YouTube onto my computer.  Furthermore, it is hard to think of a reason that my recoding has to include the video as well as the audio.

    Of course, using these tools to take songs from YouTube and put them up on a file sharing service would be illegal.  But that would be because sharing songs you do not own with the world is illegal, not because getting them from YouTube is illegal.

    Back to the Banana and the Bank

    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.

    NoteIt is worth mentioning that the situation between YouTube and YouTube-MP3.org is a bit more complicated than the one between the RIAA and Download.com.  The RIAA has specifically mentioned fears about infringement in its request to CNET.  YouTube’s letters apparently focus on the use of its API, which is governed by contract law.  While YouTube is generally free to limit how people use its API, that power does not extend to preventing people from downloading videos by other means – means that YouTube-MP3.org is apparently using instead of the API.  While YouTube can tell people how to use their API, their ability to dictate what I do with the videos that are streamed to my computer is much more limited.