Breyer, J., concurring
tive values of infringing and noninfringing uses; determine the efficiency and advisability of technological changes; or assess a product’s potential future markets. The price of a wrong guess—even if it involves a good faith effort to assess technical and commercial viability—could be large statutory damages (not less than $750 and up to $30,000 per infringed work). 17 U.S.C. § 504(c)(1). The additional risk and uncertainty would mean a consequent additional chill of technological development.
C
The third question—whether a positive copyright impact would outweigh any technology related loss—I find the most difficult of the three. I do not doubt that a more intrusive Sony test would generally provide greater revenue security for copyright holders. But it is harder to conclude that the gains on the copyright swings would exceed the losses on the technology roundabouts.
For one thing, the law disfavors equating the two different kinds of gain and loss; rather, it leans in favor of protecting technology. As Sony itself makes clear, the producer of a technology which permits unlawful copying does not himself engage in unlawful copying—a fact that makes the attachment of copyright liability to the creation, production, or distribution of the technology an exceptional thing. See 464 U.S., at 431 (courts “must be circumspect” in construing the copyright laws to preclude distribution of new technologies). Moreover, Sony has been the law for some time. And that fact imposes a serious burden upon copyright holders like MGM to show a need for change in the current rules of the game, including a more strict interpretation of the test. See, e.g., Brief for Motion Picture Studio and Recording Company Petitioners 31 (Sony should not protect products when the “primary or principal” use is infringing).
In any event, the evidence now available does not, in my view, make out a sufficiently strong case for change. To say
