Breyer, J., concurring
would emphasize, should reconsider, on a fuller record, its interpretation of Sony’s product distribution holding.
Justice Breyer, with whom Justice Stevens and Justice O’Connor join, concurring.
I agree with the Court that the distributor of a dual-use technology may be liable for the infringing activities of third parties where he or she actively seeks to advance the infringement. Ante, at 919. I further agree that, in light of our holding today, we need not now “revisit” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Ante, at 934. Other Members of the Court, however, take up the Sony question: whether Grokster’s product is “capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” Ante, at 942 (Ginsburg, J., concurring) (quoting Sony, supra, at 442). And they answer that question by stating that the Court of Appeals was wrong when it granted summary judgment on the issue in Grokster’s favor. Ante, at 944. I write to explain why I disagree with them on this matter.
I
The Court’s opinion in Sony and the record evidence (as described and analyzed in the many briefs before us) together convince me that the Court of Appeals’ conclusion has adequate legal support.
A
I begin with Sony’s standard. In Sony, the Court considered the potential copyright liability of a company that did not itself illegally copy protected material, but rather sold a machine—a videocassette recorder (VCR)—that could be used to do so. A buyer could use that machine for non-infringing purposes, such as recording for later viewing (sometimes called “ ‘time-shifting,’ ” Sony, 464 U.S., at 421) uncopyrighted television programs or copyrighted programs with a copyright holder’s permission. The buyer could use
