944
METRO-GOLDWYN-MAYER STUDIOS INC. v. GROKSTER, LTD.
Ginsburg, J., concurring
cially significant.” Ibid.[1] Further development was left for later days and cases.
The Ninth Circuit went astray, I will endeavor to explain, when that court granted summary judgment to Grokster and StreamCast on the charge of contributory liability based on distribution of their software products. Relying on its earlier opinion in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (CA9 2001), the Court of Appeals held that “if substantial noninfringing use was shown, the copyright owner would be required to show that the defendant had reasonable knowledge of specific infringing files.” 380 F.3d 1154, 1161 (CA9 2004). “A careful examination of the record,” the
- ↑ Justice Breyer finds in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), a “clear” rule permitting contributory liability for copyright infringement based on distribution of a product only when the product “will be used almost exclusively to infringe copyrights.” Post, at 957. But cf. Sony, 464 U.S., at 442 (recognizing “copyright holder’s legitimate demand for effective—not merely symbolic—protection”). Sony, as I read it, contains no clear, near-exclusivity test. Nor have Courts of Appeals unanimously recognized Justice Breyer’s clear rule. Compare A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1021 (CA9 2001) (“[E]vidence of actual knowledge of specific acts of infringement is required to hold a computer system operator liable for contributory copyright infringement.”), with In re Aimster Copyright Litigation, 334 F.3d 643, 649–650 (CA7 2003) (“[W]hen a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement. … But the balancing of costs and benefits is necessary only in a case in which substantial noninfringing uses, present or prospective, are demonstrated.”). See also Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 693, 707 (CA2 1998) (“The Supreme Court applied [the Sony] test to prevent copyright holders from leveraging the copyrights in their original work to control distribution of … products that might be used incidentally for infringement, but that had substantial noninfringing uses. … The same rationale applies here [to products] that have substantial, predominant and noninfringing uses as tools for research and citation.”). All Members of the Court agree, moreover, that “the Court of Appeals misapplied Sony,” at least to the extent it read that decision to limit “secondary liability” to a hardly ever category, “quite beyond the circumstances to which the case applied.” Ante, at 933.
