by Casey Lynn
Contributing Writer, [GAS]

The more I read about the RealDVD lawsuit (which I blogged last week), the more I feel like I’m listening to a broken record. Haven’t we heard this all before?

Most recently, Wired pointed out how RealDVD is like a bong shop. After all, RealDVD clearly has a notice stating that users should only use the software to copy movies that they own, not rented movies–just like there are signs by all those pretty glass water pipes warning that they are not to be used with “illegal substances.”

It all comes down to the issue of consumer control. Should a company be penalized for producing something that can also be used to do [illegal thing] when its primary purpose is to do [legal thing]? Once it’s out of their hands, do they have control over how the consumer chooses to use it? Should dry erase markers be illegal because some people sniff them to get high?

This is an argument that goes way back, to the mother of these types of cases, Sony v. Universal (the betamax case). Movie and television studios were originally not thrilled with the idea of the VCR, since it meant that people could make copies of their content.  But the Supreme Court gave the technology the green light based on “substantially non-infringing uses”–i.e. private, noncommercial time-shifting.  Sure, some people might use the VCR to build libraries of copyrighted content, but most people are using it to, for example, tape a soap opera that comes on during the day while they’re at work.

Neither Napster nor Grokster fared as well under this same argument… not that surprising.  Their supporters could stand there until they were blue in the face and say that P2P was supposed to be for sharing the Bible, and Shakespeare, and works released under Creative Commons, but anyone listening knew that the software was really for sharing copyrighted materials like songs and movies.

Right now, Google is fighting the same battle with Viacom.  Google is trying to paint YouTube as more like the Sony case than Napster and Grokster.  Sure, YouTube users can upload infringing material, but that’s not the point of YouTube.  I think that this is actually a much better argument now than it was a year and a half ago when Viacom first filed the complaint.  With the growing popularity of vloggers and original web-produced material, I think that Google has a great argument for “substantially non-infringing uses.”  Of course, a snag may be an obvious difference between YouTube and Sony–once Sony sold a VCR, they had no way of knowing what the consumer did with it, but YouTube can obviously search through the site at any given time and find infringing material.  Though like those bong shops, YouTube also warns users not to upload that sort of content.

So what about RealDVD?  It seems to me that it’s got a leg-up in terms of precedent.  Being able to maintain a digital library of DVDs that you own is certainly a substantial non-infringing use, and I think that the MPAA would be hard-pressed to prove that most people would be using it for stealing rented DVDs instead.  Additionally, like Sony (and the bong shops!) and unlike YouTube, they don’t know what their consumers will choose to do with their product.

Of course, none of this may matter since the central dispute right now seems to be whether RealDVD violates the DMCA by circumventing DVD encryption.  RealDVD says that no, there’s no circumvention of content-scrambling and that they’re just dealing with bit-for-bit copies.  The judge is currently unconvinced and wants more time to study the issue–she has ordered the software discontinued in the meantime and will be setting a new hearing.