Breyer, J., concurring
F.3d 693, 706–707 (CA2 1998) (court did not require that noninfringing uses be “predominant,” it merely found that they were predominant, and therefore provided no analysis of Sony’s boundaries); but see ante, at 944, n. 1 (Ginsburg, J., concurring); see also A&M Records v. Napster, Inc., 239 F.3d 1004, 1020 (CA9 2001) (discussing Sony); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 842–847 (CA11 1990) (same); Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255, 262 (CA5 1988) (same); cf. Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1275 (CA Fed. 2004) (same); see also Doe v. GTE Corp., 347 F.3d 655, 661 (CA7 2003) (“A person may be liable as a contributory infringer if the product or service it sells has no (or only slight) legal use”).
Instead, the real question is whether we should modify the Sony standard, as MGM requests, or interpret Sony more strictly, as I believe Justice Ginsburg’s approach would do in practice. Compare ante, at 944–948 (concurring opinion) (insufficient evidence in this case of both present lawful uses and of a reasonable prospect that substantial noninfringing uses would develop over time), with Sony, 464 U.S., at 442–447 (basing conclusion as to the likely existence of a substantial market for authorized copying upon general declarations, some survey data, and common sense).
As I have said, Sony itself sought to “strike a balance between a copyright holder’s legitimate demand for effective—not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.” Id., at 442. Thus, to determine whether modification, or a strict interpretation, of Sony is needed, I would ask whether MGM has shown that Sony incorrectly balanced copyright and new-technology interests. In particular: (1) Has Sony (as I interpret it) worked to protect new technology? (2) If so, would modification or strict interpretation significantly weaken that protection? (3) If
