Breyer, J., concurring
to time shifting (emphasis added)). Nonetheless, the Court buttressed its conclusion by finding separately that, in any event, un-authorized time shifting often constituted not infringement, but “fair use.” Id., at 447–456.
B
When measured against Sony’s underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony’s test—that is, whether the company’s product is capable of substantial or commercially significant noninfringing uses. Id., at 442. For one thing, petitioners’ (hereinafter MGM) own expert declared that 75% of current files available on Grokster are infringing and 15% are “likely infringing.” See App. 436–439, ¶¶ 6–17 (Decl. of Dr. Ingram Olkin); cf. ante, at 922 (opinion of the Court). That leaves some number of files near 10% that apparently are noninfringing, a figure very similar to the 9% or so of authorized time-shifting uses of the VCR that the Court faced in Sony.
As in Sony, witnesses here explained the nature of the noninfringing files on Grokster’s network without detailed quantification. Those files include:
—Authorized copies of music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. See App. 152–153, ¶¶ 9–13 (Decl. of Aram Sinnreich) (Wilco’s “lesson has already been adopted by artists still signed to their major labels”); id., at 170, ¶¶ 5–7 (Decl. of Patricia D. Hoekman) (locating “numerous audio recordings” that were authorized for swapping); id., at 74, ¶ 10 (Decl. of Daniel B. Rung) (describing Grokster’s partnership with a company that hosts music from thousands of independent artists)
—Free electronic books and other works from various online publishers, including Project Gutenberg. See id., at 136, ¶ 12 (Decl. of Gregory Newby) (“Numerous authorized and public domain Project Gutenberg eBooks are made available” on Grokster. Project Gutenberg “welcomes this widespread
