MP3.com case. And the assurance that users were only downloading music
they already owned was not likely to satisfy the RIAA. Most people, the
RIAA argued, used Napster's technology to "steal" copyrighted work. It was
a technology designed to enable stealing; it should be banned like burglar's
tools.

Copyright law is not new to a technology said to be designed solely to fa-
cilitate theft. Think of the VCR. The VCR records content from television
sets. It is designed to record content from television sets. The designers
could well have chosen to disable the record button when the input was
from a TV. They could, that is, have permitted recording when the input
was from a camera and not a TV. But instead, they designed it so that tele-
vision content could be copied for free.

No one in the television industry gave individuals the right to copy tele-
vision content. The television industry instead insisted that copying
television content was a crime. The industry launched a massive legal ac-
tion against producers of VCRs, claiming that it was a technology de-
signed to enable stealing and that it should be banned like burglar's tools. As
Motion Picture Association of America president Jack Valenti testified, the
VCR was the "Boston Strangler" of the American film industry.[11-31]

This legal campaign ended up in the courtroom of Judge Warren Fer-
guson.[11-32] After "three years of litigation, five weeks of trial and careful con-
sideration of extensive briefing by both sides,"[11-33] the trial court judge found
that the use of VCRs should be considered "fair use" under the copyright
act. The court of appeals quickly reversed, but the important work had been
done in the trial court. The judge had listened to the facts. Sony was per-
mitted weeks of testimony to demonstrate that, in fact, the VCR would not
harm the industry. Sony was permitted, in other words, to show how this
technology should be influenced by the law.

These findings were critical in the appellate review of the case. And when
the case finally reached the Supreme Court, it gave the Supreme Court suf-
ficient ground to understand matters in a balanced and reasonable way.
Though the VCR was designed to steal, the Court concluded that it could
not be banned as an infringing technology unless there was no "potential"
for a "substantial noninfringing use."

_Potential._ For a _substantial_ noninfringing use. Notice what this standard
does not say. It does not require that a majority of the uses of the technology
be noninfringing. It requires only that a "substantial" portion be nonin-
fringing. And it does not require that this noninfringement be proven today.
It requires only that there be a potential for this noninfringing use. As long

[[195]]

p194 _ -chap- _ toc-1 _ p195w _ toc-2 _ +chap+ _ p196

v?