- How the Sony defense should be interpreted: as merely a gloss on the type of knowledge
required for contributory liability (Ninth Circuit) versus a cost/benefit analysis of the
infringing and noninfringing uses of a system to determine whether contributory liability
should be imposed (Seventh Circuit). - What triggers the Sony defense: mere capability of substantial noninfringing uses of the
technology at issue (Ninth Circuit) versus “principal,” actual uses (Seventh Circuit). - Whether Sony imposes a duty to redesign technology to avoid or reduce infringing uses:
no (Ninth Circuit) versus yes if not disproportionately costly to do so (Seventh Circuit).
These contrary rulings from the Circuits, together with the petitioners’ and respondents’
briefs and a host of amicus briefs, presented a number of questions that the Supreme Court could
have resolved through this case:
- Does Sony afford an independent, stand-alone immunity to secondary copyright liability
based upon the sale and distribution of technology that is capable of substantial
noninfringing uses, or is it merely a gloss on the knowledge prong of contributory
liability? - More generally, does the Sony defense apply to both contributory and vicarious liability,
or only to contributory liability? - If the Sony defense is an independent immunity, what is its relationship to the traditional
doctrines of secondary liability? - With respect to noninfringing uses of a technology, do merely potential uses count, or
only actual uses? - Is a cost/benefit analysis required to determine whether the Sony immunity should apply?
- Is there any difference between “substantial” and “commercially significant”
noninfringing uses and which is the operative test for triggering the Sony immunity (the
Supreme Court used both phrases in its Sony opinion in immediately contiguous
sentences without elucidating whether it meant any difference between the two phrases,
and if so, which standard should govern)? - Must the distributor of a technology that can be used for infringing uses redesign its
product to reduce or eliminate infringing uses in order to avoid secondary liability for
them?
In their briefs on appeal, the petitioners urged the following principal positions with
respect to these questions: