Justice Breyer then reviewed the appellate decisions construing Sony and noted that only
one – the Seventh Circuit’s Aimster decision – had interpreted Sony more strictly that he would
do.^1936 Based on a review of those appellate decisions, he concluded that Sony establishes “that
the law will not impose copyright liability upon the distributors of dual-use technologies (who do
not themselves engage in unauthorized copying) unless the product in question will be used
almost exclusively to infringe copyrights (or unless they actively induced infringements as we
today describe).”^1937
Justice Breyer lauded this interpretation of Sony as encouraging technical innovation by
providing “entrepreneurs with needed assurance that they will be shielded from copyright
liability as they bring valuable new technologies to market.”^1938 It does so in the following
ways:^1939
- The Sony rule, as so interpreted, is clear, and allows those who develop new products that
are capable of substantial noninfringing uses to know, ex ante, that distribution of their
product will not yield massive monetary liability. - It is strongly technology protecting, sheltering a product unless it will be used almost
exclusively to infringe. - It is forward looking, and does not confine the safe harbor to a static snapshot of a
product’s current uses, but rather looks to uses of which the product is capable.^1940 - It is mindful of the limitations facing judges where matters of technology are concerned,
since judges have no specialized technical ability to answer questions about present or
future technological feasibility or commercial viability where technology professionals,
engineers, and venture capitalists may radically disagree and where answers may differ
depending upon whether one focuses upon the time of product development or the time
of distribution.
Justice Breyer concluded that a modified Sony rule as urged by the petitioners or as
interpreted by Justice Ginsburg would significantly chill technological development, as
innovators would have no way to predict how courts would weigh the respective values of
infringing and noninfringing uses, determine the efficiency and advisability of technological
changes or assess a product’s potential future markets.^1941
(^1936) Id. at 955.
(^1937) Id. 957.
(^1938) Id.
(^1939) See id. at 957-58.
(^1940) Justice Breyer interpreted the word “capable” as used in Sony to refer “to a plausible, not simply a theoretical,
likelihood that such uses will come to pass, and that fact anchors Sony in practical reality.” Id. at 958.
(^1941) Id. at 959-60.