(Slip Opinion) OCTOBER TERM, 2004 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
METRO-GOLDWYN-MAYER STUDIOS INC. ET AL. v.
GROKSTER, LTD., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 04–480. Argued March 29, 2005—Decided June 27, 2005
Respondent companies distribute free software that allows computer
users to share electronic files through peer-to-peer networks, so
called because the computers communicate directly with each other,
not through central servers. Although such networks can be used to
share any type of digital file, recipients of respondents’ software have
mostly used them to share copyrighted music and video files without
authorization. Seeking damages and an injunction, a group of movie
studios and other copyright holders (hereinafter MGM) sued respon-
dents for their users’ copyright infringements, alleging that respon-
dents knowingly and intentionally distributed their software to en-
able users to infringe copyrighted works in violation of the Copyright
Act.
Discovery revealed that billions of files are shared across peer-to-
peer networks each month. Respondents are aware that users em-
ploy their software primarily to download copyrighted files, although
the decentralized networks do not reveal which files are copied, and
when. Respondents have sometimes learned about the infringement
directly when users have e-mailed questions regarding copyrighted
works, and respondents have replied with guidance. Respondents
are not merely passive recipients of information about infringement.
The record is replete with evidence that when they began to distrib-
ute their free software, each of them clearly voiced the objective that
recipients use the software to download copyrighted works and took
active steps to encourage infringement. After the notorious file-
sharing service, Napster, was sued by copyright holders for facilitat-
ing copyright infringement, both respondents promoted and mar-
keted themselves as Napster alternatives. They receive no revenue
2 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Syllabus
from users, but, instead, generate income by selling advertising
space, then streaming the advertising to their users. As the number
of users increases, advertising opportunities are worth more. There
is no evidence that either respondent made an effort to filter copy-
righted material from users’ downloads or otherwise to impede the
sharing of copyrighted files.
While acknowledging that respondents’ users had directly in-
fringed MGM’s copyrights, the District Court nonetheless granted re-
spondents summary judgment as to liability arising from distribution
of their software. The Ninth Circuit affirmed. It read Sony Corp. of
America v. Universal City Studios, Inc., 464 U. S. 417, as holding that
the distribution of a commercial product capable of substantial nonin-
fringing uses could not give rise to contributory liability for infringe-
ment unless the distributor had actual knowledge of specific in-
stances of infringement and failed to act on that knowledge. Because
the appeals court found respondents’ software to be capable of sub-
stantial noninfringing uses and because respondents had no actual
knowledge of infringement owing to the software’s decentralized ar-
chitecture, the court held that they were not liable. It also held that
they did not materially contribute to their users’ infringement be-
cause the users themselves searched for, retrieved, and stored the in-
fringing files, with no involvement by respondents beyond providing
the software in the first place. Finally, the court held that respon-
dents could not be held liable under a vicarious infringement theory
because they did not monitor or control the software’s use, had no
agreed-upon right or current ability to supervise its use, and had no
independent duty to police infringement.
Held: One who distributes a device with the object of promoting its use
to infringe copyright, as shown by clear expression or other affirma-
tive steps taken to foster infringement, going beyond mere distribu-
tion with knowledge of third-party action, is liable for the resulting
acts of infringement by third parties using the device, regardless of
the device’s lawful uses. Pp. 10–24.
(a) The tension between the competing values of supporting crea-
tivity through copyright protection and promoting technological inno-
vation by limiting infringement liability is the subject of this case.
Despite offsetting considerations, the argument for imposing indirect
liability here is powerful, given the number of infringing downloads
that occur daily using respondents’ software. When a widely shared
product is used to commit infringement, it may be impossible to en-
force rights in the protected work effectively against all direct in-
fringers, so that the only practical alternative is to go against the de-
vice’s distributor for secondary liability on a theory of contributory or
vicarious infringement. One infringes contributorily by intentionally
Cite as: 545 U. S. ____ (2005) 3
Syllabus
inducing or encouraging direct infringement, and infringes vicari-
ously by profiting from direct infringement while declining to exercise
the right to stop or limit it. Although “[t]he Copyright Act does not
expressly render anyone liable for [another’s] infringement,” Sony,
464 U. S., at 434, these secondary liability doctrines emerged from
common law principles and are well established in the law, e.g., id.,
at 486. Pp. 10–13.
(b) Sony addressed a claim that secondary liability for infringement
can arise from the very distribution of a commercial product. There,
copyright holders sued Sony, the manufacturer of videocassette re-
corders, claiming that it was contributorily liable for the infringe-
ment that occurred when VCR owners taped copyrighted programs.
The evidence showed that the VCR’s principal use was “time-
shifting,” i.e., taping a program for later viewing at a more conven-
ient time, which the Court found to be a fair, noninfringing use. 464
U. S., at 423–424. Moreover, there was no evidence that Sony had
desired to bring about taping in violation of copyright or taken active
steps to increase its profits from unlawful taping. Id., at 438. On
those facts, the only conceivable basis for liability was on a theory of
contributory infringement through distribution of a product. Id., at
439. Because the VCR was “capable of commercially significant non-
infringing uses,” the Court held that Sony was not liable. Id., at 442.
This theory reflected patent law’s traditional staple article of com-
merce doctrine that distribution of a component of a patented device
will not violate the patent if it is suitable for use in other ways. 35
U. S. C §271(c). The doctrine absolves the equivocal conduct of sell-
ing an item with lawful and unlawful uses and limits liability to in-
stances of more acute fault. In this case, the Ninth Circuit misread
Sony to mean that when a product is capable of substantial lawful
use, the producer cannot be held contributorily liable for third par-
ties’ infringing use of it, even when an actual purpose to cause in-
fringing use is shown, unless the distributors had specific knowledge
of infringement at a time when they contributed to the infringement
and failed to act upon that information. Sony did not displace other
secondary liability theories. Pp. 13–17.
(c) Nothing in Sony requires courts to ignore evidence of intent to
promote infringement if such evidence exists. It was never meant to
foreclose rules of fault-based liability derived from the common law.
464 U. S., at 439. Where evidence goes beyond a product’s character-
istics or the knowledge that it may be put to infringing uses, and
shows statements or actions directed to promoting infringement,
Sony’s staple-article rule will not preclude liability. At common law a
copyright or patent defendant who “not only expected but invoked
[infringing use] by advertisement” was liable for infringement.
4 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Syllabus
Kalem Co. v. Harper Brothers, 222 U. S. 55, 62–63. The rule on in-
ducement of infringement as developed in the early cases is no differ-
ent today. Evidence of active steps taken to encourage direct in-
fringement, such as advertising an infringing use or instructing how
to engage in an infringing use, shows an affirmative intent that the
product be used to infringe, and overcomes the law’s reluctance to
find liability when a defendant merely sells a commercial product
suitable for some lawful use. A rule that premises liability on pur-
poseful, culpable expression and conduct does nothing to compromise
legitimate commerce or discourage innovation having a lawful prom-
ise. Pp. 17–20.
(d) On the record presented, respondents’ unlawful objective is un-
mistakable. The classic instance of inducement is by advertisement
or solicitation that broadcasts a message designed to stimulate others
to commit violations. MGM argues persuasively that such a message
is shown here. Three features of the evidence of intent are particu-
larly notable. First, each of the respondents showed itself to be aim-
ing to satisfy a known source of demand for copyright infringement,
the market comprising former Napster users. Respondents’ efforts to
supply services to former Napster users indicate a principal, if not
exclusive, intent to bring about infringement. Second, neither re-
spondent attempted to develop filtering tools or other mechanisms to
diminish the infringing activity using their software. While the
Ninth Circuit treated that failure as irrelevant because respondents
lacked an independent duty to monitor their users’ activity, this evi-
dence underscores their intentional facilitation of their users’ in-
fringement. Third, respondents make money by selling advertising
space, then by directing ads to the screens of computers employing
their software. The more their software is used, the more ads are
sent out and the greater the advertising revenue. Since the extent of
the software’s use determines the gain to the distributors, the com-
mercial sense of their enterprise turns on high-volume use, which the
record shows is infringing. This evidence alone would not justify an
inference of unlawful intent, but its import is clear in the entire re-
cord’s context. Pp. 20–23.
(e) In addition to intent to bring about infringement and distribu-
tion of a device suitable for infringing use, the inducement theory re-
quires evidence of actual infringement by recipients of the device, the
software in this case. There is evidence of such infringement on a gi-
gantic scale. Because substantial evidence supports MGM on all
elements, summary judgment for respondents was error. On re-
mand, reconsideration of MGM’s summary judgment motion will be
in order. Pp. 23–24.
380 F. 3d 1154, vacated and remanded.
Cite as: 545 U. S. ____ (2005) 5
Syllabus
SOUTER, J., delivered the opinion for a unanimous Court. GINSBURG,
J., filed a concurring opinion, in which REHNQUIST, C. J., and KENNEDY,
J., joined. BREYER, J., filed a concurring opinion, in which STEVENS and
O’CONNOR, JJ., joined.
Cite as: 545 U. S. ____ (2005) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–480
_________________
METRO-GOLDWYN-MAYER STUDIOS INC., ET AL.,
PETITIONERS v. GROKSTER, LTD., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2005]
JUSTICE SOUTER delivered the opinion of the Court.
The question is under what circumstances the distribu-
tor of a product capable of both lawful and unlawful use is
liable for acts of copyright infringement by third parties
using the product. We hold that one who distributes a
device with the object of promoting its use to infringe
copyright, as shown by clear expression or other affirma-
tive steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties.
I
A
Respondents, Grokster, Ltd., and StreamCast Networks,
Inc., defendants in the trial court, distribute free software
products that allow computer users to share electronic
files through peer-to-peer networks, so called because
users’ computers communicate directly with each other,
not through central servers. The advantage of peer-to-
peer networks over information networks of other types
shows up in their substantial and growing popularity.
Because they need no central computer server to mediate
the exchange of information or files among users, the high-
2 METRO-GOLDWYN-MAYER STUDIOS INC. v.
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Opinion of the Court
bandwidth communications capacity for a server may be
dispensed with, and the need for costly server storage
space is eliminated. Since copies of a file (particularly a
popular one) are available on many users’ computers, file
requests and retrievals may be faster than on other types
of networks, and since file exchanges do not travel through
a server, communications can take place between any
computers that remain connected to the network without
risk that a glitch in the server will disable the network in
its entirety. Given these benefits in security, cost, and
efficiency, peer-to-peer networks are employed to store
and distribute electronic files by universities, government
agencies, corporations, and libraries, among others.1
Other users of peer-to-peer networks include individual
recipients of Grokster’s and StreamCast’s software, and
although the networks that they enjoy through using the
software can be used to share any type of digital file, they
have prominently employed those networks in sharing
copyrighted music and video files without authorization.
A group of copyright holders (MGM for short, but includ-
ing motion picture studios, recording companies, song-
writers, and music publishers) sued Grokster and
StreamCast for their users’ copyright infringements,
alleging that they knowingly and intentionally distributed
their software to enable users to reproduce and distribute
the copyrighted works in violation of the Copyright Act, 17
U. S. C. §101 et seq. (2000 ed. and Supp. II).2 MGM sought
——————
1 Peer-to-peer networks have disadvantages as well. Searches on
peer-to-peer networks may not reach and uncover all available files
because search requests may not be transmitted to every computer on
the network. There may be redundant copies of popular files. The
creator of the software has no incentive to minimize storage or band-
width consumption, the costs of which are borne by every user of the
network. Most relevant here, it is more difficult to control the content
of files available for retrieval and the behavior of users.
2 The studios and recording companies and the songwriters and music
publishers filed separate suits against the defendants that were con-
Cite as: 545 U. S. ____ (2005) 3
Opinion of the Court
damages and an injunction.
Discovery during the litigation revealed the way the
software worked, the business aims of each defendant
company, and the predilections of the users. Grokster’s
eponymous software employs what is known as FastTrack
technology, a protocol developed by others and licensed to
Grokster. StreamCast distributes a very similar product
except that its software, called Morpheus, relies on what is
known as Gnutella technology.3 A user who downloads
and installs either software possesses the protocol to send
requests for files directly to the computers of others using
software compatible with FastTrack or Gnutella. On the
FastTrack network opened by the Grokster software, the
user’s request goes to a computer given an indexing capac-
ity by the software and designated a supernode, or to some
other computer with comparable power and capacity to
collect temporary indexes of the files available on the
computers of users connected to it. The supernode (or
indexing computer) searches its own index and may com-
municate the search request to other supernodes. If the
file is found, the supernode discloses its location to the
computer requesting it, and the requesting user can
download the file directly from the computer located. The
copied file is placed in a designated sharing folder on the
requesting user’s computer, where it is available for other
users to download in turn, along with any other file in that
folder.
In the Gnutella network made available by Morpheus,
the process is mostly the same, except that in some ver-
sions of the Gnutella protocol there are no supernodes. In
these versions, peer computers using the protocol commu-
——————
solidated by the District Court.
3 Subsequent versions of Morpheus, released after the record was
made in this case, apparently rely not on Gnutella but on a technology
called Neonet. These developments are not before us.
4 METRO-GOLDWYN-MAYER STUDIOS INC. v.
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Opinion of the Court
nicate directly with each other. When a user enters a
search request into the Morpheus software, it sends the
request to computers connected with it, which in turn pass
the request along to other connected peers. The search
results are communicated to the requesting computer, and
the user can download desired files directly from peers’
computers. As this description indicates, Grokster and
StreamCast use no servers to intercept the content of the
search requests or to mediate the file transfers conducted
by users of the software, there being no central point
through which the substance of the communications
passes in either direction.4
Although Grokster and StreamCast do not therefore
know when particular files are copied, a few searches
using their software would show what is available on the
networks the software reaches. MGM commissioned a
statistician to conduct a systematic search, and his study
showed that nearly 90% of the files available for download
on the FastTrack system were copyrighted works.5 Grok-
ster and StreamCast dispute this figure, raising methodo-
logical problems and arguing that free copying even of
copyrighted works may be authorized by the rightholders.
They also argue that potential noninfringing uses of their
software are significant in kind, even if infrequent in
practice. Some musical performers, for example, have
gained new audiences by distributing their copyrighted
works for free across peer-to-peer networks, and some
——————
4 There is some evidence that both Grokster and StreamCast previ-
ously operated supernodes, which compiled indexes of files available on
all of the nodes connected to them. This evidence, pertaining to previ-
ous versions of the defendants’ software, is not before us and would not
affect our conclusions in any event.
5 By comparison, evidence introduced by the plaintiffs in A & M Re-
cords, Inc. v. Napster, Inc., 239 F. 3d 1004 (CA9 2001), showed that
87% of files available on the Napster filesharing network were copy-
righted, id., at 1013.
Cite as: 545 U. S. ____ (2005) 5
Opinion of the Court
distributors of unprotected content have used peer-to-peer
networks to disseminate files, Shakespeare being an
example. Indeed, StreamCast has given Morpheus users
the opportunity to download the briefs in this very case,
though their popularity has not been quantified.
As for quantification, the parties’ anecdotal and statisti-
cal evidence entered thus far to show the content available
on the FastTrack and Gnutella networks does not say
much about which files are actually downloaded by users,
and no one can say how often the software is used to ob-
tain copies of unprotected material. But MGM’s evidence
gives reason to think that the vast majority of users’
downloads are acts of infringement, and because well over
100 million copies of the software in question are known to
have been downloaded, and billions of files are shared
across the FastTrack and Gnutella networks each month,
the probable scope of copyright infringement is staggering.
Grokster and StreamCast concede the infringement in
most downloads, Brief for Respondents 10, n. 6, and it is
uncontested that they are aware that users employ their
software primarily to download copyrighted files, even if
the decentralized FastTrack and Gnutella networks fail to
reveal which files are being copied, and when. From time
to time, moreover, the companies have learned about their
users’ infringement directly, as from users who have sent
e-mail to each company with questions about playing
copyrighted movies they had downloaded, to whom the
companies have responded with guidance.6 App. 559–563,
808–816, 939–954. And MGM notified the companies of 8
million copyrighted files that could be obtained using their
software.
Grokster and StreamCast are not, however, merely
passive recipients of information about infringing use.
——————
6 The Grokster founder contends that in answering these e-mails he
often did not read them fully. App. 77, 769.
6 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
The record is replete with evidence that from the moment
Grokster and StreamCast began to distribute their free
software, each one clearly voiced the objective that recipi-
ents use it to download copyrighted works, and each took
active steps to encourage infringement.
After the notorious file-sharing service, Napster, was
sued by copyright holders for facilitation of copyright
infringement, A & M Records, Inc. v. Napster, Inc., 114
F. Supp. 2d 896 (ND Cal. 2000), aff’d in part, rev’d in part,
239 F. 3d 1004 (CA9 2001), StreamCast gave away a
software program of a kind known as OpenNap, designed
as compatible with the Napster program and open to
Napster users for downloading files from other Napster
and OpenNap users’ computers. Evidence indicates that
“[i]t was always [StreamCast’s] intent to use [its OpenNap
network] to be able to capture email addresses of [its]
initial target market so that [it] could promote [its]
StreamCast Morpheus interface to them,” App. 861; in-
deed, the OpenNap program was engineered “ ‘to leverage
Napster’s 50 million user base,’ ” id., at 746.
StreamCast monitored both the number of users
downloading its OpenNap program and the number of
music files they downloaded. Id., at 859, 863, 866. It also
used the resulting OpenNap network to distribute copies
of the Morpheus software and to encourage users to adopt
it. Id., at 861, 867, 1039. Internal company documents
indicate that StreamCast hoped to attract large numbers
of former Napster users if that company was shut down by
court order or otherwise, and that StreamCast planned to
be the next Napster. Id., at 861. A kit developed by
StreamCast to be delivered to advertisers, for example,
contained press articles about StreamCast’s potential to
capture former Napster users, id., at 568–572, and it
introduced itself to some potential advertisers as a com-
pany “which is similar to what Napster was,” id., at 884.
It broadcast banner advertisements to users of other
Cite as: 545 U. S. ____ (2005) 7
Opinion of the Court
Napster-compatible software, urging them to adopt its
OpenNap. Id., at 586. An internal e-mail from a company
executive stated: “ ‘We have put this network in place so
that when Napster pulls the plug on their free service . . .
or if the Court orders them shut down prior to that . . . we
will be positioned to capture the flood of their 32 million
users that will be actively looking for an alternative.’ ” Id.,
at 588–589, 861.
Thus, StreamCast developed promotional materials to
market its service as the best Napster alternative. One
proposed advertisement read: “Napster Inc. has an-
nounced that it will soon begin charging you a fee. That’s
if the courts don’t order it shut down first. What will you
do to get around it?” Id., at 897. Another proposed ad
touted StreamCast’s software as the “#1 alternative to
Napster” and asked “[w]hen the lights went off at Napster
. . . where did the users go?” Id., at 836 (ellipsis in origi-
nal).7 StreamCast even planned to flaunt the illegal uses
of its software; when it launched the OpenNap network,
the chief technology officer of the company averred that
“[t]he goal is to get in trouble with the law and get sued.
It’s the best way to get in the new[s].” Id., at 916.
The evidence that Grokster sought to capture the mar-
ket of former Napster users is sparser but revealing, for
Grokster launched its own OpenNap system called Swap-
tor and inserted digital codes into its Web site so that
computer users using Web search engines to look for
“Napster” or “[f]ree filesharing” would be directed to the
Grokster Web site, where they could download the Grok-
ster software. Id., at 992–993. And Grokster’s name is an
apparent derivative of Napster.
——————
7 The record makes clear that StreamCast developed these promo-
tional materials but not whether it released them to the public. Even if
these advertisements were not released to the public and do not show
encouragement to infringe, they illuminate StreamCast’s purposes.
8 METRO-GOLDWYN-MAYER STUDIOS INC. v.
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Opinion of the Court
StreamCast’s executives monitored the number of songs
by certain commercial artists available on their networks,
and an internal communication indicates they aimed to
have a larger number of copyrighted songs available on
their networks than other file-sharing networks. Id., at
868. The point, of course, would be to attract users of a
mind to infringe, just as it would be with their promo-
tional materials developed showing copyrighted songs as
examples of the kinds of files available through Morpheus.
Id., at 848. Morpheus in fact allowed users to search
specifically for “Top 40” songs, id., at 735, which were
inevitably copyrighted. Similarly, Grokster sent users a
newsletter promoting its ability to provide particular,
popular copyrighted materials. Brief for Motion Picture
Studio and Recording Company Petitioners 7–8.
In addition to this evidence of express promotion, mar-
keting, and intent to promote further, the business models
employed by Grokster and StreamCast confirm that their
principal object was use of their software to download
copyrighted works. Grokster and StreamCast receive no
revenue from users, who obtain the software itself for
nothing. Instead, both companies generate income by
selling advertising space, and they stream the advertising
to Grokster and Morpheus users while they are employing
the programs. As the number of users of each program
increases, advertising opportunities become worth more.
Cf. App. 539, 804. While there is doubtless some demand
for free Shakespeare, the evidence shows that substantive
volume is a function of free access to copyrighted work.
Users seeking Top 40 songs, for example, or the latest
release by Modest Mouse, are certain to be far more nu-
merous than those seeking a free Decameron, and Grok-
ster and StreamCast translated that demand into dollars.
Finally, there is no evidence that either company made
an effort to filter copyrighted material from users’
downloads or otherwise impede the sharing of copyrighted
Cite as: 545 U. S. ____ (2005) 9
Opinion of the Court
files. Although Grokster appears to have sent e-mails
warning users about infringing content when it received
threatening notice from the copyright holders, it never
blocked anyone from continuing to use its software to
share copyrighted files. Id., at 75–76. StreamCast not
only rejected another company’s offer of help to monitor
infringement, id., at 928–929, but blocked the Internet
Protocol addresses of entities it believed were trying to
engage in such monitoring on its networks, id., at 917–
922.
B
After discovery, the parties on each side of the case
cross-moved for summary judgment. The District Court
limited its consideration to the asserted liability of Grok-
ster and StreamCast for distributing the current versions
of their software, leaving aside whether either was liable
“for damages arising from past versions of their software,
or from other past activities.” 259 F. Supp. 2d 1029, 1033
(CD Cal. 2003). The District Court held that those who
used the Grokster and Morpheus software to download
copyrighted media files directly infringed MGM’s copy-
rights, a conclusion not contested on appeal, but the court
nonetheless granted summary judgment in favor of Grok-
ster and StreamCast as to any liability arising from dis-
tribution of the then current versions of their software.
Distributing that software gave rise to no liability in the
court’s view, because its use did not provide the distribu-
tors with actual knowledge of specific acts of infringement.
Case No. CV 01 08541 SVW (PJWx) (CD Cal., June 18,
2003), App. 1213.
The Court of Appeals affirmed. 380 F. 3d 1154 (CA9
2004). In the court’s analysis, a defendant was liable as a
contributory infringer when it had knowledge of direct
infringement and materially contributed to the infringe-
ment. But the court read Sony Corp. of America v. Uni-
10 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
versal City Studios, Inc., 464 U. S. 417 (1984), as holding
that distribution of a commercial product capable of sub-
stantial noninfringing uses could not give rise to contribu-
tory liability for infringement unless the distributor had
actual knowledge of specific instances of infringement and
failed to act on that knowledge. The fact that the software
was capable of substantial noninfringing uses in the Ninth
Circuit’s view meant that Grokster and StreamCast were
not liable, because they had no such actual knowledge,
owing to the decentralized architecture of their software.
The court also held that Grokster and StreamCast did not
materially contribute to their users’ infringement because
it was the users themselves who searched for, retrieved,
and stored the infringing files, with no involvement by the
defendants beyond providing the software in the first
place.
The Ninth Circuit also considered whether Grokster and
StreamCast could be liable under a theory of vicarious
infringement. The court held against liability because the
defendants did not monitor or control the use of the soft-
ware, had no agreed-upon right or current ability to su-
pervise its use, and had no independent duty to police
infringement. We granted certiorari. 543 U. S. ___ (2004).
II
A
MGM and many of the amici fault the Court of Ap-
peals’s holding for upsetting a sound balance between the
respective values of supporting creative pursuits through
copyright protection and promoting innovation in new
communication technologies by limiting the incidence of
liability for copyright infringement. The more artistic
protection is favored, the more technological innovation
may be discouraged; the administration of copyright law is
an exercise in managing the trade-off. See Sony Corp. v.
Universal City Studios, supra, at 442; see generally Gins-
Cite as: 545 U. S. ____ (2005) 11
Opinion of the Court
burg, Copyright and Control Over New Technologies of
Dissemination, 101 Colum. L. Rev. 1613 (2001); Lichtman
& Landes, Indirect Liability for Copyright Infringement:
An Economic Perspective, 16 Harv. J. L. & Tech. 395
(2003).
The tension between the two values is the subject of this
case, with its claim that digital distribution of copyrighted
material threatens copyright holders as never before,
because every copy is identical to the original, copying is
easy, and many people (especially the young) use file-
sharing software to download copyrighted works. This
very breadth of the software’s use may well draw the
public directly into the debate over copyright policy, Pe-
ters, Brace Memorial Lecture: Copyright Enters the Public
Domain, 51 J. Copyright Soc. 701, 705–717 (2004) (address
by Register of Copyrights), and the indications are that
the ease of copying songs or movies using software like
Grokster’s and Napster’s is fostering disdain for copyright
protection, Wu, When Code Isn’t Law, 89 Va. L. Rev. 679,
724–726 (2003). As the case has been presented to us,
these fears are said to be offset by the different concern
that imposing liability, not only on infringers but on dis-
tributors of software based on its potential for unlawful
use, could limit further development of beneficial tech-
nologies. See, e.g., Lemley & Reese, Reducing Digital
Copyright Infringement Without Restricting Innovation,
56 Stan. L. Rev. 1345, 1386–1390 (2004); Brief for Innova-
tion Scholars and Economists as Amici Curiae 15–20;
Brief for Emerging Technology Companies as Amici Cu-
riae 19–25; Brief for Intel Corporation as Amicus Curiae
20–22.8
——————
8 The mutual exclusivity of these values should not be overstated,
however. On the one hand technological innovators, including those
writing filesharing computer programs, may wish for effective copyright
protections for their work. See, e.g., Wu, When Code Isn’t Law, 89 Va.
L. Rev. 679, 750 (2003). (StreamCast itself was urged by an associate
12 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
The argument for imposing indirect liability in this case
is, however, a powerful one, given the number of infring-
ing downloads that occur every day using StreamCast’s
and Grokster’s software. When a widely shared service or
product is used to commit infringement, it may be impos-
sible to enforce rights in the protected work effectively
against all direct infringers, the only practical alternative
being to go against the distributor of the copying device for
secondary liability on a theory of contributory or vicarious
infringement. See In re Aimster Copyright Litigation, 334
F. 3d 643, 645–646 (CA7 2003).
One infringes contributorily by intentionally inducing or
encouraging direct infringement, see Gershwin Pub. Corp.
v. Columbia Artists Management, Inc., 443 F. 2d 1159,
1162 (CA2 1971), and infringes vicariously by profiting
from direct infringement while declining to exercise a
right to stop or limit it, Shapiro, Bernstein & Co. v. H. L.
Green Co., 316 F. 2d 304, 307 (CA2 1963).9 Although
——————
to “get [its] technology written down and [its intellectual property]
protected.” App. 866.) On the other hand the widespread distribution
of creative works through improved technologies may enable the
synthesis of new works or generate audiences for emerging artists. See
Eldred v. Ashcroft, 537 U. S. 186, 223–226 (2003) (STEVENS, J., dissent-
ing); Van Houweling, Distributive Values in Copyright, 83 Texas
L. Rev. 1535, 1539–1540, 1562–1564 (2005); Brief for Sovereign Artists
et al. as Amici Curiae 11.
9 We stated in Sony Corp. of America v. Universal City Studios, Inc.,
464 U. S. 417 (1984), that “ ‘the lines between direct infringement,
contributory infringement and vicarious liability are not clearly drawn’
. . . . [R]easoned analysis of [the Sony plaintiffs’ contributory infringe-
ment claim] necessarily entails consideration of arguments and case
law which may also be forwarded under the other labels, and indeed
the parties . . . rely upon such arguments and authority in support of
their respective positions on the issue of contributory infringement,”
id., at 435, n. 17 (quoting Universal City Studios, Inc. v. Sony Corp.,
480 F. Supp. 429, 457–458 (CD Cal. 1979)). In the present case MGM
has argued a vicarious liability theory, which allows imposition of
liability when the defendant profits directly from the infringement and
has a right and ability to supervise the direct infringer, even if the
Cite as: 545 U. S. ____ (2005) 13
Opinion of the Court
“[t]he Copyright Act does not expressly render anyone
liable for infringement committed by another,” Sony Corp.
v. Universal City Studios, 464 U. S., at 434, these doc-
trines of secondary liability emerged from common law
principles and are well established in the law, id., at 486
(Blackmun, J., dissenting); Kalem Co. v. Harper Brothers,
222 U. S. 55, 62–63 (1911); Gershwin Pub. Corp. v. Co-
lumbia Artists Management, supra, at 1162; 3 M. Nimmer
& D. Nimmer, Copyright, §12.04[A] (2005).
B
Despite the currency of these principles of secondary
liability, this Court has dealt with secondary copyright
infringement in only one recent case, and because MGM
has tailored its principal claim to our opinion there, a look
at our earlier holding is in order. In Sony Corp. v. Univer-
sal City Studios, supra, this Court addressed a claim that
secondary liability for infringement can arise from the
very distribution of a commercial product. There, the
product, novel at the time, was what we know today as the
videocassette recorder or VCR. Copyright holders sued
Sony as the manufacturer, claiming it was contributorily
liable for infringement that occurred when VCR owners
taped copyrighted programs because it supplied the means
used to infringe, and it had constructive knowledge that
infringement would occur. At the trial on the merits, the
evidence showed that the principal use of the VCR was for
“ ‘time-shifting,’ ” or taping a program for later viewing at a
more convenient time, which the Court found to be a fair,
not an infringing, use. Id., at 423–424. There was no
——————
defendant initially lacks knowledge of the infringement. See, e.g.,
Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304, 308 (CA2
1963); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d
354, 355 (CA7 1929). Because we resolve the case based on an induce-
ment theory, there is no need to analyze separately MGM’s vicarious
liability theory.
14 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
evidence that Sony had expressed an object of bringing
about taping in violation of copyright or had taken active
steps to increase its profits from unlawful taping. Id., at
438. Although Sony’s advertisements urged consumers to
buy the VCR to “ ‘record favorite shows’ ” or “ ‘build a li-
brary’ ” of recorded programs, id., at 459 (Blackmun, J.,
dissenting), neither of these uses was necessarily infring-
ing, id., at 424, 454–455.
On those facts, with no evidence of stated or indicated
intent to promote infringing uses, the only conceivable
basis for imposing liability was on a theory of contributory
infringement arising from its sale of VCRs to consumers
with knowledge that some would use them to infringe. Id.,
at 439. But because the VCR was “capable of commer-
cially significant noninfringing uses,” we held the manu-
facturer could not be faulted solely on the basis of its
distribution. Id., at 442.
This analysis reflected patent law’s traditional staple
article of commerce doctrine, now codified, that distribu-
tion of a component of a patented device will not violate
the patent if it is suitable for use in other ways. 35
U. S. C. §271(c); Aro Mfg. Co. v. Convertible Top Replace-
ment Co., 377 U. S. 476, 485 (1964) (noting codification of
cases); id., at 486, n. 6 (same). The doctrine was devised
to identify instances in which it may be presumed from
distribution of an article in commerce that the distributor
intended the article to be used to infringe another’s pat-
ent, and so may justly be held liable for that infringement.
“One who makes and sells articles which are only adapted
to be used in a patented combination will be presumed to
intend the natural consequences of his acts; he will be
presumed to intend that they shall be used in the combi-
nation of the patent.” New York Scaffolding Co. v. Whit-
ney, 224 F. 452, 459 (CA8 1915); see also James Heekin
Co. v. Baker, 138 F. 63, 66 (CA8 1905); Canda v. Michigan
Malleable Iron Co., 124 F. 486, 489 (CA6 1903); Thomson-
Cite as: 545 U. S. ____ (2005) 15
Opinion of the Court
Houston Electric Co. v. Ohio Brass Co., 80 F. 712, 720–721
(CA6 1897); Red Jacket Mfg. Co. v. Davis, 82 F. 432, 439
(CA7 1897); Holly v. Vergennes Machine Co., 4 F. 74, 82
(CC Vt. 1880); Renwick v. Pond, 20 F. Cas. 536, 541 (No.
11,702) (CC SDNY 1872).
In sum, where an article is “good for nothing else” but
infringement, Canda v. Michigan Malleable Iron Co.,
supra, at 489, there is no legitimate public interest in its
unlicensed availability, and there is no injustice in pre-
suming or imputing an intent to infringe, see Henry v.
A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other
grounds, Motion Picture Patents Co. v. Universal Film
Mfg. Co., 243 U. S. 502 (1917). Conversely, the doctrine
absolves the equivocal conduct of selling an item with
substantial lawful as well as unlawful uses, and limits
liability to instances of more acute fault than the mere
understanding that some of one’s products will be mis-
used. It leaves breathing room for innovation and a vigor-
ous commerce. See Sony Corp. v. Universal City Studios,
supra, at 442; Dawson Chemical Co. v. Rohm & Haas Co.,
448 U. S. 176, 221 (1980); Henry v. A. B. Dick Co., supra,
at 48.
The parties and many of the amici in this case think the
key to resolving it is the Sony rule and, in particular, what
it means for a product to be “capable of commercially
significant noninfringing uses.” Sony Corp. v. Universal
City Studios, supra, at 442. MGM advances the argument
that granting summary judgment to Grokster and
StreamCast as to their current activities gave too much
weight to the value of innovative technology, and too little
to the copyrights infringed by users of their software,
given that 90% of works available on one of the networks
was shown to be copyrighted. Assuming the remaining
10% to be its noninfringing use, MGM says this should not
qualify as “substantial,” and the Court should quantify
Sony to the extent of holding that a product used “princi-
16 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
pally” for infringement does not qualify. See Brief for
Motion Picture Studio and Recording Company Petitioners
31. As mentioned before, Grokster and StreamCast reply
by citing evidence that their software can be used to re-
produce public domain works, and they point to copyright
holders who actually encourage copying. Even if in-
fringement is the principal practice with their software
today, they argue, the noninfringing uses are significant
and will grow.
We agree with MGM that the Court of Appeals misap-
plied Sony, which it read as limiting secondary liability
quite beyond the circumstances to which the case applied.
Sony barred secondary liability based on presuming or
imputing intent to cause infringement solely from the
design or distribution of a product capable of substantial
lawful use, which the distributor knows is in fact used for
infringement. The Ninth Circuit has read Sony’s limita-
tion to mean that whenever a product is capable of sub-
stantial lawful use, the producer can never be held con-
tributorily liable for third parties’ infringing use of it; it
read the rule as being this broad, even when an actual
purpose to cause infringing use is shown by evidence
independent of design and distribution of the product,
unless the distributors had “specific knowledge of in-
fringement at a time at which they contributed to the
infringement, and failed to act upon that information.”
380 F. 3d, at 1162 (internal quotation marks and altera-
tions omitted). Because the Circuit found the StreamCast
and Grokster software capable of substantial lawful use, it
concluded on the basis of its reading of Sony that neither
company could be held liable, since there was no showing
that their software, being without any central server,
afforded them knowledge of specific unlawful uses.
This view of Sony, however, was error, converting the
case from one about liability resting on imputed intent to
one about liability on any theory. Because Sony did not
Cite as: 545 U. S. ____ (2005) 17
Opinion of the Court
displace other theories of secondary liability, and because
we find below that it was error to grant summary judg-
ment to the companies on MGM’s inducement claim, we
do not revisit Sony further, as MGM requests, to add a
more quantified description of the point of balance be-
tween protection and commerce when liability rests solely
on distribution with knowledge that unlawful use will
occur. It is enough to note that the Ninth Circuit’s judg-
ment rested on an erroneous understanding of Sony and to
leave further consideration of the Sony rule for a day when
that may be required.
C
Sony’s rule limits imputing culpable intent as a matter
of law from the characteristics or uses of a distributed
product. But nothing in Sony requires courts to ignore
evidence of intent if there is such evidence, and the case
was never meant to foreclose rules of fault-based liability
derived from the common law.10 Sony Corp. v. Universal
City Studios, 464 U. S., at 439 (“If vicarious liability is to
be imposed on Sony in this case, it must rest on the fact
that it has sold equipment with constructive knowledge” of
the potential for infringement). Thus, where evidence
goes beyond a product’s characteristics or the knowledge
that it may be put to infringing uses, and shows state-
ments or actions directed to promoting infringement,
Sony’s staple-article rule will not preclude liability.
The classic case of direct evidence of unlawful purpose
occurs when one induces commission of infringement by
another, or “entic[es] or persuad[es] another” to infringe,
Black’s Law Dictionary 790 (8th ed. 2004), as by advertis-
ing. Thus at common law a copyright or patent defendant
——————
10 Nor does the Patent Act’s exemption from liability for those who
distribute a staple article of commerce, 35 U. S. C. §271(c), extend to
those who induce patent infringement, §271(b).
18 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
who “not only expected but invoked [infringing use] by
advertisement” was liable for infringement “on principles
recognized in every part of the law.” Kalem Co. v. Harper
Brothers, 222 U. S., at 62–63 (copyright infringement).
See also Henry v. A. B. Dick Co., 224 U. S., at 48–49 (con-
tributory liability for patent infringement may be found
where a good’s “most conspicuous use is one which will
coöperate in an infringement when sale to such user is
invoked by advertisement” of the infringing use); Thom-
son-Houston Electric Co. v. Kelsey Electric R. Specialty
Co., 75 F. 1005, 1007–1008 (CA2 1896) (relying on adver-
tisements and displays to find defendant’s “willingness . . .
to aid other persons in any attempts which they may be
disposed to make towards [patent] infringement”); Rum-
ford Chemical Works v. Hecker, 20 F. Cas. 1342, 1346 (No.
12,133) (CC N. J. 1876) (demonstrations of infringing
activity along with “avowals of the [infringing] purpose
and use for which it was made” supported liability for
patent infringement).
The rule on inducement of infringement as developed in
the early cases is no different today.11 Evidence of “active
steps . . . taken to encourage direct infringement,” Oak
Industries, Inc. v. Zenith Electronics Corp., 697 F. Supp.
988, 992 (ND Ill. 1988), such as advertising an infringing
use or instructing how to engage in an infringing use,
show an affirmative intent that the product be used to
infringe, and a showing that infringement was encouraged
overcomes the law’s reluctance to find liability when a
defendant merely sells a commercial product suitable for
some lawful use, see, e.g., Water Technologies Corp. v.
Calco, Ltd., 850 F. 2d 660, 668 (CA Fed. 1988) (liability for
inducement where one “actively and knowingly aid[s] and
abet[s] another’s direct infringement” (emphasis omitted));
Fromberg, Inc. v. Thornhill, 315 F. 2d 407, 412–413 (CA5
——————
11 Inducement has been codified in patent law. Ibid.
Cite as: 545 U. S. ____ (2005) 19
Opinion of the Court
1963) (demonstrations by sales staff of infringing uses
supported liability for inducement); Haworth Inc. v. Her-
man Miller Inc., 37 USPQ 2d 1080, 1090 (WD Mich. 1994)
(evidence that defendant “demonstrate[d] and recom-
mend[ed] infringing configurations” of its product could
support inducement liability); Sims v. Mack Trucks, Inc.,
459 F. Supp. 1198, 1215 (ED Pa. 1978) (finding induce-
ment where the use “depicted by the defendant in its
promotional film and brochures infringes the . . . patent”),
overruled on other grounds, 608 F. 2d 87 (CA3 1979). Cf.
W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts 37 (5th ed. 1984) (“There is a
definite tendency to impose greater responsibility upon a
defendant whose conduct was intended to do harm, or was
morally wrong”).
For the same reasons that Sony took the staple-article
doctrine of patent law as a model for its copyright safe-
harbor rule, the inducement rule, too, is a sensible one for
copyright. We adopt it here, holding that one who distrib-
utes a device with the object of promoting its use to in-
fringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, is liable for
the resulting acts of infringement by third parties. We
are, of course, mindful of the need to keep from trenching
on regular commerce or discouraging the development of
technologies with lawful and unlawful potential. Accord-
ingly, just as Sony did not find intentional inducement
despite the knowledge of the VCR manufacturer that its
device could be used to infringe, 464 U. S., at 439, n. 19,
mere knowledge of infringing potential or of actual infring-
ing uses would not be enough here to subject a distributor
to liability. Nor would ordinary acts incident to product
distribution, such as offering customers technical support
or product updates, support liability in themselves. The
inducement rule, instead, premises liability on purposeful,
culpable expression and conduct, and thus does nothing to
20 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
compromise legitimate commerce or discourage innovation
having a lawful promise.
III
A
The only apparent question about treating MGM’s
evidence as sufficient to withstand summary judgment
under the theory of inducement goes to the need on
MGM’s part to adduce evidence that StreamCast and
Grokster communicated an inducing message to their
software users. The classic instance of inducement is by
advertisement or solicitation that broadcasts a message
designed to stimulate others to commit violations. MGM
claims that such a message is shown here. It is undis-
puted that StreamCast beamed onto the computer screens
of users of Napster-compatible programs ads urging the
adoption of its OpenNap program, which was designed, as
its name implied, to invite the custom of patrons of Nap-
ster, then under attack in the courts for facilitating mas-
sive infringement. Those who accepted StreamCast’s
OpenNap program were offered software to perform the
same services, which a factfinder could conclude would
readily have been understood in the Napster market as
the ability to download copyrighted music files. Grokster
distributed an electronic newsletter containing links to
articles promoting its software’s ability to access popular
copyrighted music. And anyone whose Napster or free
file-sharing searches turned up a link to Grokster would
have understood Grokster to be offering the same file-
sharing ability as Napster, and to the same people who
probably used Napster for infringing downloads; that
would also have been the understanding of anyone offered
Grokster’s suggestively named Swaptor software, its
version of OpenNap. And both companies communicated a
clear message by responding affirmatively to requests for
help in locating and playing copyrighted materials.
Cite as: 545 U. S. ____ (2005) 21
Opinion of the Court
In StreamCast’s case, of course, the evidence just de-
scribed was supplemented by other unequivocal indica-
tions of unlawful purpose in the internal communications
and advertising designs aimed at Napster users (“When
the lights went off at Napster . . . where did the users go?”
App. 836 (ellipsis in original)). Whether the messages
were communicated is not to the point on this record. The
function of the message in the theory of inducement is to
prove by a defendant’s own statements that his unlawful
purpose disqualifies him from claiming protection (and
incidentally to point to actual violators likely to be found
among those who hear or read the message). See supra, at
17–19. Proving that a message was sent out, then, is the
preeminent but not exclusive way of showing that active
steps were taken with the purpose of bringing about in-
fringing acts, and of showing that infringing acts took
place by using the device distributed. Here, the summary
judgment record is replete with other evidence that Grok-
ster and StreamCast, unlike the manufacturer and dis-
tributor in Sony, acted with a purpose to cause copyright
violations by use of software suitable for illegal use. See
supra, at 6–9.
Three features of this evidence of intent are particularly
notable. First, each company showed itself to be aiming to
satisfy a known source of demand for copyright infringe-
ment, the market comprising former Napster users.
StreamCast’s internal documents made constant reference
to Napster, it initially distributed its Morpheus software
through an OpenNap program compatible with Napster, it
advertised its OpenNap program to Napster users, and its
Morpheus software functions as Napster did except that it
could be used to distribute more kinds of files, including
copyrighted movies and software programs. Grokster’s
name is apparently derived from Napster, it too initially
offered an OpenNap program, its software’s function is
likewise comparable to Napster’s, and it attempted to
22 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
divert queries for Napster onto its own Web site. Grokster
and StreamCast’s efforts to supply services to former
Napster users, deprived of a mechanism to copy and dis-
tribute what were overwhelmingly infringing files, indi-
cate a principal, if not exclusive, intent on the part of each
to bring about infringement.
Second, this evidence of unlawful objective is given
added significance by MGM’s showing that neither com-
pany attempted to develop filtering tools or other mecha-
nisms to diminish the infringing activity using their soft-
ware. While the Ninth Circuit treated the defendants’
failure to develop such tools as irrelevant because they
lacked an independent duty to monitor their users’ activ-
ity, we think this evidence underscores Grokster’s and
StreamCast’s intentional facilitation of their users’ in-
fringement.12
Third, there is a further complement to the direct evi-
dence of unlawful objective. It is useful to recall that
StreamCast and Grokster make money by selling advertis-
ing space, by directing ads to the screens of computers
employing their software. As the record shows, the more
the software is used, the more ads are sent out and the
greater the advertising revenue becomes. Since the extent
of the software’s use determines the gain to the distribu-
tors, the commercial sense of their enterprise turns on
high-volume use, which the record shows is infringing.13
——————
12 Of course, in the absence of other evidence of intent, a court would
be unable to find contributory infringement liability merely based on a
failure to take affirmative steps to prevent infringement, if the device
otherwise was capable of substantial noninfringing uses. Such a
holding would tread too close to the Sony safe harbor.
13 Grokster and StreamCast contend that any theory of liability based
on their conduct is not properly before this Court because the rulings in
the trial and appellate courts dealt only with the present versions of
their software, not “past acts . . . that allegedly encouraged infringe-
ment or assisted . . . known acts of infringement.” Brief for Respon-
dents 14; see also id., at 34. This contention misapprehends the basis
Cite as: 545 U. S. ____ (2005) 23
Opinion of the Court
This evidence alone would not justify an inference of
unlawful intent, but viewed in the context of the entire
record its import is clear.
The unlawful objective is unmistakable.
B
In addition to intent to bring about infringement and
distribution of a device suitable for infringing use, the
inducement theory of course requires evidence of actual
infringement by recipients of the device, the software in
this case. As the account of the facts indicates, there is
evidence of infringement on a gigantic scale, and there is
no serious issue of the adequacy of MGM’s showing on this
point in order to survive the companies’ summary judg-
ment requests. Although an exact calculation of infringing
use, as a basis for a claim of damages, is subject to dis-
pute, there is no question that the summary judgment
evidence is at least adequate to entitle MGM to go forward
with claims for damages and equitable relief.
* * *
In sum, this case is significantly different from Sony and
reliance on that case to rule in favor of StreamCast and
Grokster was error. Sony dealt with a claim of liability
based solely on distributing a product with alternative
lawful and unlawful uses, with knowledge that some users
would follow the unlawful course. The case struck a bal-
——————
for their potential liability. It is not only that encouraging a particular
consumer to infringe a copyright can give rise to secondary liability for
the infringement that results. Inducement liability goes beyond that,
and the distribution of a product can itself give rise to liability where
evidence shows that the distributor intended and encouraged the
product to be used to infringe. In such a case, the culpable act is not
merely the encouragement of infringement but also the distribution of
the tool intended for infringing use. See Kalem Co. v. Harper Brothers,
222 U. S. 55, 62–63 (1911); Cable/Home Communication Corp. v.
Network Productions, Inc., 902 F. 2d 829, 846 (CA11 1990); A & M
Records, Inc. v. Abdallah, 948 F. Supp. 1449, 1456 (CD Cal. 1996).
24 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
ance between the interests of protection and innovation by
holding that the product’s capability of substantial lawful
employment should bar the imputation of fault and conse-
quent secondary liability for the unlawful acts of others.
MGM’s evidence in this case most obviously addresses a
different basis of liability for distributing a product open
to alternative uses. Here, evidence of the distributors’
words and deeds going beyond distribution as such shows
a purpose to cause and profit from third-party acts of
copyright infringement. If liability for inducing infringe-
ment is ultimately found, it will not be on the basis of
presuming or imputing fault, but from inferring a patently
illegal objective from statements and actions showing
what that objective was.
There is substantial evidence in MGM’s favor on all
elements of inducement, and summary judgment in favor
of Grokster and StreamCast was error. On remand, re-
consideration of MGM’s motion for summary judgment
will be in order.
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 545 U. S. ____ (2005) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–480
_________________
METRO-GOLDWYN-MAYER STUDIOS INC., ET AL.,
PETITIONERS v. GROKSTER, LTD., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2005]
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE and
JUSTICE KENNEDY join, concurring.
I concur in the Court’s decision, which vacates in full the
judgment of the Court of Appeals for the Ninth Circuit,
ante, at 24, and write separately to clarify why I conclude
that the Court of Appeals misperceived, and hence misap-
plied, our holding in Sony Corp. of America v. Universal
City Studios, Inc., 464 U. S. 417 (1984). There is here at
least a “genuine issue as to [a] material fact,” Fed. Rule
Civ. Proc. 56(c), on the liability of Grokster or StreamCast,
not only for actively inducing copyright infringement, but
also or alternatively, based on the distribution of their
software products, for contributory copyright infringe-
ment. On neither score was summary judgment for Grok-
ster and StreamCast warranted.
At bottom, however labeled, the question in this case is
whether Grokster and StreamCast are liable for the direct
infringing acts of others. Liability under our jurispru-
dence may be predicated on actively encouraging (or in-
ducing) infringement through specific acts (as the Court’s
opinion develops) or on distributing a product distributees
use to infringe copyrights, if the product is not capable of
“substantial” or “commercially significant” noninfringing
uses. Sony, 464 U. S., at 442; see also 3 M. Nimmer & D.
Nimmer, Nimmer on Copyright §12.04[A][2] (2005). While
2 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
GINSBURG, J., concurring
the two categories overlap, they capture different culpable
behavior. Long coexisting, both are now codified in patent
law. Compare 35 U. S. C. §271(b) (active inducement
liability), with §271(c) (contributory liability for distribu-
tion of a product not “suitable for substantial noninfring-
ing use”).
In Sony, 464 U. S. 417, the Court considered Sony’s
liability for selling the Betamax video cassette recorder. It
did so enlightened by a full trial record. Drawing an
analogy to the staple article of commerce doctrine from
patent law, the Sony Court observed that the “sale of an
article . . . adapted to [a patent] infringing use” does not
suffice “to make the seller a contributory infringer” if the
article “is also adapted to other and lawful uses.” Id., at
441 (quoting Henry v. A. B. Dick Co., 224 U. S. 1, 48
(1912), overruled on other grounds, Motion Picture Patents
Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517 (1917)).
“The staple article of commerce doctrine” applied to
copyright, the Court stated, “must strike a balance be-
tween a copyright holder’s legitimate demand for effec-
tive—not merely symbolic—protection of the statutory
monopoly, and the rights of others freely to engage in
substantially unrelated areas of commerce.” Sony, 464
U. S., at 442. “Accordingly,” the Court held, “the sale of
copying equipment, like the sale of other articles of com-
merce, does not constitute contributory infringement if the
product is widely used for legitimate, unobjectionable
purposes. Indeed, it need merely be capable of substantial
noninfringing uses.” Ibid. Thus, to resolve the Sony case,
the Court explained, it had to determine “whether the
Betamax is capable of commercially significant noninfring-
ing uses.” Ibid.
To answer that question, the Court considered whether
“a significant number of [potential uses of the Betamax
were] noninfringing.” Ibid. The Court homed in on one
potential use—private, noncommercial time-shifting of
Cite as: 545 U. S. ____ (2005) 3
GINSBURG, J., concurring
television programs in the home (i.e., recording a broad-
cast TV program for later personal viewing). Time-
shifting was noninfringing, the Court concluded, because
in some cases trial testimony showed it was authorized by
the copyright holder, id., at 443–447, and in others it
qualified as legitimate fair use, id., at 447–455. Most
purchasers used the Betamax principally to engage in
time-shifting, id., at 421, 423, a use that “plainly satis-
fie[d]” the Court’s standard, id., at 442. Thus, there was
no need in Sony to “give precise content to the question of
how much [actual or potential] use is commercially signifi-
cant.” Ibid.1 Further development was left for later days
——————
1 JUSTICE BREYER finds in Sony Corp. of America v. Universal City Stu-
dios, 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 9–10. But cf. Sony, 464 U. S., at 442 (recognizing
“copyright holder’s legitimate demand for effective—not merely sym-
bolic—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 noninfring-
ing as well as infringing uses, some estimate of the respective magni-
tudes of these uses is necessary for a finding of contributory infringe-
ment. . . . 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 nonin-
fringing 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 cate-
4 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
GINSBURG, J., concurring
and cases.
The Ninth Circuit went astray, I will endeavor to ex-
plain, 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 court concluded,
“indicates that there is no genuine issue of material fact as
to noninfringing use.” Ibid. The appeals court pointed to
the band Wilco, which made one of its albums available for
free downloading, to other recording artists who may have
authorized free distribution of their music through the
Internet, and to public domain literary works and films
available through Grokster’s and StreamCast’s software.
Ibid. Although it acknowledged MGM’s assertion that
“the vast majority of the software use is for copyright
infringement,” the court concluded that Grokster’s and
StreamCast’s proffered evidence met Sony’s requirement
that “a product need only be capable of substantial nonin-
fringing uses.” 380 F. 3d, at 1162.2
This case differs markedly from Sony. Cf. Peters, Brace
Memorial Lecture: Copyright Enters the Public Domain,
51 J. Copyright Soc. 701, 724 (2004) (“The Grokster panel’s
reading of Sony is the broadest that any court has given it
——————
gory, “quite beyond the circumstances to which the case applied.” Ante,
at 16.
2 Grokster and StreamCast, in the Court of Appeals’ view, would be
entitled to summary judgment unless MGM could show that that the
software companies had knowledge of specific acts of infringement and
failed to act on that knowledge—a standard the court held MGM could
not meet. 380 F. 3d, at 1162–1163.
Cite as: 545 U. S. ____ (2005) 5
GINSBURG, J., concurring
. . . .”). Here, there has been no finding of any fair use and
little beyond anecdotal evidence of noninfringing uses. In
finding the Grokster and StreamCast software products
capable of substantial noninfringing uses, the District Court
and the Court of Appeals appear to have relied largely on
declarations submitted by the defendants. These declara-
tions include assertions (some of them hearsay) that a
number of copyright owners authorize distribution of their
works on the Internet and that some public domain material
is available through peer-to-peer networks including those
accessed through Grokster’s and StreamCast’s software.
380 F. 3d, at 1161; 259 F. Supp. 2d 1029, 1035–1036 (CD
Cal. 2003); App. 125–171.
The District Court declared it “undisputed that there
are substantial noninfringing uses for Defendants’ soft-
ware,” thus obviating the need for further proceedings.
259 F. Supp. 2d, at 1035. This conclusion appears to rest
almost entirely on the collection of declarations submitted
by Grokster and StreamCast. Ibid. Review of these
declarations reveals mostly anecdotal evidence, sometimes
obtained second-hand, of authorized copyrighted works or
public domain works available online and shared through
peer-to-peer networks, and general statements about the
benefits of peer-to-peer technology. See, e.g., Decl. of Janis
Ian ¶13, App. 128 (“P2P technologies offer musicians an
alternative channel for promotion and distribution.”);
Decl. of Gregory Newby ¶12, id., at 136 (“Numerous au-
thorized and public domain Project Gutenberg eBooks are
made available on Morpheus, Kazaa, Gnutella, Grokster,
and similar software products.”); Decl. of Aram Sinnreich
¶6, id., at 151 (“file sharing seems to have a net positive
impact on music sales”); Decl. of John Busher ¶8, id., at
166 (“I estimate that Acoustica generates sales of between
$1,000 and $10,000 per month as a result of the distribu-
tion of its trialware software through the Gnutella and
FastTrack Networks.”); Decl. of Patricia D. Hoekman ¶¶3–
6 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
GINSBURG, J., concurring
4, id., at 169–170 (search on Morpheus for “President
Bush speeches” found several video recordings, searches
for “Declaration of Independence” and “Bible” found vari-
ous documents and declarant was able to download a copy
of the Declaration); Decl. of Sean L. Mayers ¶11, id., at 67
(“Existing open, decentralized peer-to-peer file-sharing
networks . . . offer content owners distinct business advan-
tages over alternate online distribution technologies.”).
Compare Decl. of Brewster Kahle ¶20, id., at 142 (“Those
who download the Prelinger films . . . are entitled to redis-
tribute those files, and the Archive welcomes their redis-
tribution by the Morpheus-Grokster-KaZaa community of
users.”), with Deposition of Brewster Kahle, id., at 396–
403 (Sept. 18, 2002) (testifying that he has no knowledge
of any person downloading a Prelinger film using Mor-
pheus, Grokster, or KaZaA). Compare also Decl. of Rich-
ard Prelinger ¶17, id., at 147 (“[W]e welcome further
redistribution of the Prelinger films . . . by individuals
using peer-to-peer software products like Morpheus, Ka-
ZaA and Grokster.”), with Deposition of Richard Prelinger,
id., at 410–411 (Oct. 1, 2002) (“Q. What is your under-
standing of Grokster? A. I have no understanding of
Grokster. . . . Q. Do you know whether any user of the
Grokster software has made available to share any Prelin-
ger film? A. No.”). See also Deposition of Aram Sinnreich,
id., at 390 (Sept. 25, 2002) (testimony about the band
Wilco based on “[t]he press and industry news groups and
scuttlebutt.”). These declarations do not support summary
judgment in the face of evidence, proffered by MGM, of
overwhelming use of Grokster’s and StreamCast’s soft-
ware for infringement.3
——————
3 JUSTICE BREYER finds support for summary judgment in this motley
collection of declarations and in a survey conducted by an expert
retained by MGM. Post, at 4–8. That survey identified 75% of the files
available through Grokster as copyrighted works owned or controlled
by the plaintiffs, and 15% of the files as works likely copyrighted. App.
Cite as: 545 U. S. ____ (2005) 7
GINSBURG, J., concurring
Even if the absolute number of noninfringing files copied
using the Grokster and StreamCast software is large, it does
not follow that the products are therefore put to substantial
noninfringing uses and are thus immune from liability. The
number of noninfringing copies may be reflective of, and
dwarfed by, the huge total volume of files shared. Further,
the District Court and the Court of Appeals did not sharply
distinguish between uses of Grokster’s and StreamCast’s
software products (which this case is about) and uses of
peer-to-peer technology generally (which this case is not
about).
In sum, when the record in this case was developed,
there was evidence that Grokster’s and StreamCast’s
products were, and had been for some time, overwhelm-
ingly used to infringe, ante, at 4–6; App. 434–439, 476–
481, and that this infringement was the overwhelming
source of revenue from the products, ante, at 8–9; 259
F. Supp. 2d, at 1043–1044. Fairly appraised, the evidence
was insufficient to demonstrate, beyond genuine debate, a
reasonable prospect that substantial or commercially
significant noninfringing uses were likely to develop over
——————
439. As to the remaining 10% of the files, “there was not enough
information to form reasonable conclusions either as to what those files
even consisted of, and/or whether they were infringing or non-
infringing.” App. 479. Even assuming, as JUSTICE BREYER does, that
the Sony Court would have absolved Sony of contributory liability
solely on the basis of the use of the Betamax for authorized time-
shifting, post, at 3–4, summary judgment is not inevitably appropriate
here. Sony stressed that the plaintiffs there owned “well below 10%” of
copyrighted television programming, 464 U. S., at 443, and found,
based on trial testimony from representatives of the four major sports
leagues and other individuals authorized to consent to home-recording
of their copyrighted broadcasts, that a similar percentage of program
copying was authorized, id., at 424. Here, the plaintiffs allegedly
control copyrights for 70% or 75% of the material exchanged through
the Grokster and StreamCast software, 380 F. 3d, at 1158; App. 439,
and the District Court does not appear to have relied on comparable
testimony about authorized copying from copyright holders.
8 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
GINSBURG, J., concurring
time. On this record, the District Court should not have
ruled dispositively on the contributory infringement
charge by granting summary judgment to Grokster and
StreamCast.4
If, on remand, the case is not resolved on summary
judgment in favor of MGM based on Grokster and
StreamCast actively inducing infringement, the Court of
Appeals, I would emphasize, should reconsider, on a fuller
record, its interpretation of Sony’s product distribution
holding.
——————
4 The
District Court’s conclusion that “[p]laintiffs do not dispute that
Defendants’ software is being used, and could be used, for substantial
noninfringing purposes,” 259 F. Supp. 2d 1029, 1036 (CD Cal. 2003);
accord 380 F. 3d, at 1161, is, to say the least, dubious. In the courts
below and in this Court, MGM has continuously disputed any such
conclusion. Brief for Motion Picture Studio and Recording Company
Petitioners 30–38; Brief for MGM Plaintiffs-Appellants in No. 03–
55894, etc. (CA9), p. 41; App. 356–357, 361–365.
Cite as: 545 U. S. ____ (2005) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–480
_________________
METRO-GOLDWYN-MAYER STUDIOS INC., ET AL.,
PETITIONERS v. GROKSTER, LTD., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2005]
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 1. 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 17. Other Members of the Court, how-
ever, take up the Sony question: whether Grokster’s prod-
uct is “capable of ‘substantial’ or ‘commercially significant’
noninfringing uses.” Ante, at 1 (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 Grok-
ster’s favor. Ante, at 4. 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 con-
2 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
sidered the potential copyright liability of a company that
did not itself illegally copy protected material, but rather
sold a machine—a Video Cassette Recorder (VCR)—that
could be used to do so. A buyer could use that machine for
noninfringing purposes, such as recording for later view-
ing (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 the machine for infringing purposes as well,
such as building libraries of taped copyrighted programs.
Or, the buyer might use the machine to record copyrighted
programs under circumstances in which the legal status of
the act of recording was uncertain (i.e., where the copying
may, or may not, have constituted a “fair use,” id., at 425–
426). Sony knew many customers would use its VCRs to
engage in unauthorized copying and “ ‘library-building.’ ”
Id., at 458–459 (Blackmun, J., dissenting). But that fact,
said the Court, was insufficient to make Sony itself an
infringer. And the Court ultimately held that Sony was
not liable for its customers’ acts of infringement.
In reaching this conclusion, the Court recognized the
need for the law, in fixing secondary copyright liability, 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. It pointed to patent law’s “staple article of com-
merce” doctrine, ibid., under which a distributor of a
product is not liable for patent infringement by its cus-
tomers unless that product is “unsuited for any commer-
cial noninfringing use.” Dawson Chemical Co. v. Rohm &
Haas Co., 448 U. S. 176, 198 (1980). The Court wrote that
the sale of copying equipment, “like the sale of other arti-
cles of commerce, does not constitute contributory in-
fringement if the product is widely used for legitimate,
unobjectionable purposes. Indeed, it need merely be capa-
Cite as: 545 U. S. ____ (2005) 3
BREYER, J., concurring
ble of substantial noninfringing uses.” Sony, 464 U. S., at
442 (emphasis added). The Court ultimately characterized
the legal “question” in the particular case as “whether
[Sony’s VCR] is capable of commercially significant nonin-
fringing uses” (while declining to give “precise content” to
these terms). Ibid. (emphasis added).
It then applied this standard. The Court had before it a
survey (commissioned by the District Court and then
prepared by the respondents) showing that roughly 9% of
all VCR recordings were of the type—namely, religious,
educational, and sports programming—owned by produc-
ers and distributors testifying on Sony’s behalf who did
not object to time-shifting. See Brief for Respondent
Universal Studios et al. O. T. 1983, No. 81–1687, pp. 52–
53; see also Sony, supra, at 424 (7.3% of all Sony VCR use
is to record sports programs; representatives of the sports
leagues do not object). A much higher percentage of VCR
users had at one point taped an authorized program, in
addition to taping unauthorized programs. And the plain-
tiffs—not a large class of content providers as in this
case—owned only a small percentage of the total available
unauthorized programming. See ante, at 6–7, and n. 3
(GINSBURG, J., concurring). But of all the taping actually
done by Sony’s customers, only around 9% was of the sort
the Court referred to as authorized.
The Court found that the magnitude of authorized
programming was “significant,” and it also noted the
“significant potential for future authorized copying.” 464
U. S., at 444. The Court supported this conclusion by
referencing the trial testimony of professional sports
league officials and a religious broadcasting representa-
tive. Id., at 444, and n. 24. It also discussed (1) a Los
Angeles educational station affiliated with the Public
Broadcasting Service that made many of its programs
available for home taping, and (2) Mr. Rogers’ Neighbor-
hood, a widely watched children’s program. Id., at 445.
4 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
On the basis of this testimony and other similar evidence,
the Court determined that producers of this kind had
authorized duplication of their copyrighted programs “in
significant enough numbers to create a substantial market
for a noninfringing use of the” VCR. Id., at 447, n. 28
(emphasis added).
The Court, in using the key word “substantial,” indi-
cated that these circumstances alone constituted a suffi-
cient basis for rejecting the imposition of secondary liabil-
ity. See id., at 456 (“Sony demonstrated a significant
likelihood that substantial numbers of copyright holders”
would not object to time-shifting (emphasis added)).
Nonetheless, the Court buttressed its conclusion by find-
ing separately that, in any event, unauthorized 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 prod-
uct is capable of substantial or commercially significant
noninfringing uses. Id., at 442. For one thing, petitioners’
(hereinafter MGM) own expert declared that 75% of cur-
rent 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 4 (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,
Cite as: 545 U. S. ____ (2005) 5
BREYER, J., concurring
Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and
others. See App. at 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 thou-
sands of independent artists)
—Free electronic books and other works from various
online publishers, including Project Gutenberg. See id., at
136, ¶12 (Decl. of Gregory B. Newby) (“Numerous author-
ized and public domain Project Gutenberg eBooks are
made available” on Grokster. Project Gutenberg “wel-
comes this widespread sharing . . . using these software
products[,] since they assist us in meeting our objectives”);
id., at 159–160, ¶32 (Decl. of Sinnreich)
—Public domain and authorized software, such as WinZip
8.1. Id., at 170, ¶8 (Decl. of Hoekman); id., at 165, ¶¶4–7
(Decl. of John Busher)
—Licensed music videos and television and movie seg-
ments distributed via digital video packaging with the
permission of the copyright holder. Id., at 70, ¶24 (Decl. of
Sean L. Mayers)
The nature of these and other lawfully swapped files is
such that it is reasonable to infer quantities of current
lawful use roughly approximate to those at issue in Sony.
At least, MGM has offered no evidence sufficient to sur-
vive summary judgment that could plausibly demonstrate
a significant quantitative difference. See ante, at 4 (opin-
ion of the Court); see also Brief for Motion Picture Studio
and Recording Company Petitioners i (referring to “at
6 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
least 90% of the total use of the services”); but see ante, at
6–7, n. 3 (GINSBURG, J., concurring). To be sure, in quan-
titative terms these uses account for only a small percent-
age of the total number of uses of Grokster’s product. But
the same was true in Sony, which characterized the rela-
tively limited authorized copying market as “substantial.”
(The Court made clear as well in Sony that the amount of
material then presently available for lawful copying—if
not actually copied—was significant, see 464 U. S., at 444,
and the same is certainly true in this case.)
Importantly, Sony also used the word “capable,” asking
whether the product is “capable of” substantial noninfring-
ing uses. Its language and analysis suggest that a figure
like 10%, if fixed for all time, might well prove insufficient,
but that such a figure serves as an adequate foundation
where there is a reasonable prospect of expanded legiti-
mate uses over time. See ibid. (noting a “significant po-
tential for future authorized copying”). And its language
also indicates the appropriateness of looking to potential
future uses of the product to determine its “capability.”
Here the record reveals a significant future market for
noninfringing uses of Grokster-type peer-to-peer software.
Such software permits the exchange of any sort of digital
file—whether that file does, or does not, contain copy-
righted material. As more and more uncopyrighted infor-
mation is stored in swappable form, it seems a likely
inference that lawful peer-to-peer sharing will become
increasingly prevalent. See, e.g., App. 142, ¶20 (Decl. of
Brewster Kahle) (“The [Internet Archive] welcomes [the]
redistribution [of authorized films] by the Morpheus-
Grokster-KaZaa community of users”); id., at 166, ¶8
(Decl. of Busher) (sales figures of $1,000 to $10,000 per
month through peer-to-peer networks “will increase in the
future as Acoustica’s trialware is more widely distributed
through these networks”); id., at 156–164, ¶¶21–40 (Decl.
of Sinnreich).
Cite as: 545 U. S. ____ (2005) 7
BREYER, J., concurring
And that is just what is happening. Such legitimate
noninfringing uses are coming to include the swapping of:
research information (the initial purpose of many peer-to-
peer networks); public domain films (e.g., those owned by
the Prelinger Archive); historical recordings and digital
educational materials (e.g., those stored on the Internet
Archive); digital photos (OurPictures, for example, is
starting a P2P photo-swapping service); “shareware” and
“freeware” (e.g., Linux and certain Windows software);
secure licensed music and movie files (Intent MediaWorks,
for example, protects licensed content sent across P2P
networks); news broadcasts past and present (the BBC
Creative Archive lets users “rip, mix and share the BBC”);
user-created audio and video files (including “podcasts”
that may be distributed through P2P software); and all
manner of free “open content” works collected by Creative
Commons (one can search for Creative Commons material
on StreamCast). See Brief for Distributed Computing
Industry Association as Amicus Curiae 15–26; Merges, A
New Dynamism in the Public Domain, 71 U. Chi. L. Rev.
183 (2004). I can find nothing in the record that suggests
that this course of events will not continue to flow natu-
rally as a consequence of the character of the software
taken together with the foreseeable development of the
Internet and of information technology. Cf. ante, at 1–2
(opinion of the Court) (discussing the significant benefits
of peer-to-peer technology).
There may be other now-unforeseen noninfringing uses
that develop for peer-to-peer software, just as the home-
video rental industry (unmentioned in Sony) developed for
the VCR. But the foreseeable development of such uses,
when taken together with an estimated 10% noninfringing
material, is sufficient to meet Sony’s standard. And while
Sony considered the record following a trial, there are no
facts asserted by MGM in its summary judgment filings
that lead me to believe the outcome after a trial here could
8 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
be any different. The lower courts reached the same
conclusion.
Of course, Grokster itself may not want to develop these
other noninfringing uses. But Sony’s standard seeks to
protect not the Groksters of this world (which in any event
may well be liable under today’s holding), but the devel-
opment of technology more generally. And Grokster’s
desires in this respect are beside the point.
II
The real question here, I believe, is not whether the
record evidence satisfies Sony. As I have interpreted the
standard set forth in that case, it does. And of the Courts
of Appeals that have considered the matter, only one has
proposed interpreting Sony more strictly than I would
do—in a case where the product might have failed under
any standard. In re Aimster Copyright Litigation, 334
F. 3d 643, 653 (CA7 2003) (defendant “failed to show that
its service is ever used for any purpose other than to in-
fringe” copyrights (emphasis added)); see Matthew Bender
& Co., Inc. v. West Pub. Co., 158 F. 3d 693, 706–707 (CA2
1998) (court did not require that noninfringing uses be
“predominant,” it merely found that they were predomi-
nant, and therefore provided no analysis of Sony’s bounda-
ries); but see ante, at 3 n. 1 (GINSBURG, J., concurring); see
also A&M Records v. Napster, Inc., 239 F. 3d 1004, 1020
(CA9 2001) (discussing Sony); Cable/Home Communica-
tion Corp. v. Network Productions, Inc., 902 F. 2d 829,
842–847 (CA11 1990) (same); Vault Corp. v. Quaid Soft-
ware, Ltd., 847 F. 2d 255, 262 (CA5 1988) (same); cf. Dy-
nacore 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
Cite as: 545 U. S. ____ (2005) 9
BREYER, J., concurring
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 4–8 (concurring)
(insufficient evidence in this case of both present lawful
uses and of a reasonable prospect that substantial nonin-
fringing uses would develop over time), with Sony, 464
U. S., at 442–447 (basing conclusion as to the likely exis-
tence 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 effec-
tive—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 inter-
pretation, 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 so, would new or necessary
copyright-related benefits outweigh any such weakening?
A
The first question is the easiest to answer. Sony’s rule,
as I interpret it, has provided entrepreneurs with needed
assurance that they will be shielded from copyright liabil-
ity as they bring valuable new technologies to market.
Sony’s rule is clear. That clarity allows those who de-
velop new products that are capable of substantial nonin-
fringing uses to know, ex ante, that distribution of their
product will not yield massive monetary liability. At the
same time, it helps deter them from distributing products
that have no other real function than—or that are specifi-
cally intended for—copyright infringement, deterrence
10 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
that the Court’s holding today reinforces (by adding a
weapon to the copyright holder’s legal arsenal).
Sony’s rule is strongly technology protecting. The rule
deliberately makes it difficult for courts to find secondary
liability where new technology is at issue. It establishes
that the law will not impose copyright liability upon the
distributors of dual-use technologies (who do not them-
selves engage in unauthorized copying) unless the product
in question will be used almost exclusively to infringe
copyrights (or unless they actively induce infringements as
we today describe). Sony thereby recognizes that the
copyright laws are not intended to discourage or to control
the emergence of new technologies, including (perhaps
especially) those that help disseminate information and
ideas more broadly or more efficiently. Thus Sony’s rule
shelters VCRs, typewriters, tape recorders, photocopiers,
computers, cassette players, compact disc burners, digital
video recorders, MP3 players, Internet search engines, and
peer-to-peer software. But Sony’s rule does not shelter
descramblers, even if one could theoretically use a de-
scrambler in a noninfringing way. 464 U. S., at 441–442;
Compare Cable/Home Communication Corp., supra, at
837–850 (developer liable for advertising television signal
descrambler), with Vault Corp., supra, at 262 (primary use
infringing but a substantial noninfringing use).
Sony’s rule is forward looking. It does not confine its
scope to a static snapshot of a product’s current uses
(thereby threatening technologies that have undeveloped
future markets). Rather, as the VCR example makes
clear, a product’s market can evolve dramatically over
time. And Sony—by referring to a capacity for substantial
noninfringing uses—recognizes that fact. Sony’s word
“capable” refers to a plausible, not simply a theoretical,
likelihood that such uses will come to pass, and that fact
anchors Sony in practical reality. Cf. Aimster, supra, at
651.
Cite as: 545 U. S. ____ (2005) 11
BREYER, J., concurring
Sony’s rule is mindful of the limitations facing judges
where matters of technology are concerned. Judges have
no specialized technical ability to answer questions about
present or future technological feasibilility or commercial
viability where technology professionals, engineers, and
venture capitalists themselves may radically disagree and
where answers may differ depending upon whether one
focuses upon the time of product development or the time
of distribution. Consider, for example, the question
whether devices can be added to Grokster’s software that
will filter out infringing files. MGM tells us this is easy
enough to do, as do several amici that produce and sell the
filtering technology. See, e.g., Brief for Motion Picture
Studio Petitioners 11; Brief for Audible Magic Corp. et al.
as Amicus Curiae 3–10. Grokster says it is not at all easy
to do, and not an efficient solution in any event, and sev-
eral apparently disinterested computer science professors
agree. See Brief for Respondents 31; Brief for Computer
Science Professors as Amicus Curiae 6–10, 14–18. Which
account should a judge credit? Sony says that the judge
will not necessarily have to decide.
Given the nature of the Sony rule, it is not surprising
that in the last 20 years, there have been relatively few
contributory infringement suits—based on a product
distribution theory—brought against technology providers
(a small handful of federal appellate court cases and per-
haps fewer than two dozen District Court cases in the last
20 years). I have found nothing in the briefs or the record
that shows that Sony has failed to achieve its innovation-
protecting objective.
B
The second, more difficult, question is whether a modi-
fied Sony rule (or a strict interpretation) would signifi-
cantly weaken the law’s ability to protect new technology.
JUSTICE GINSBURG’s approach would require defendants
12 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
to produce considerably more concrete evidence—more
than was presented here—to earn Sony’s shelter. That
heavier evidentiary demand, and especially the more
dramatic (case-by-case balancing) modifications that MGM
and the Government seek, would, I believe, undercut the
protection that Sony now offers.
To require defendants to provide, for example, detailed
evidence—say business plans, profitability estimates,
projected technological modifications, and so forth—would
doubtless make life easier for copyrightholder plaintiffs.
But it would simultaneously increase the legal uncertainty
that surrounds the creation or development of a new
technology capable of being put to infringing uses. Inven-
tors and entrepreneurs (in the garage, the dorm room, the
corporate lab, or the boardroom) would have to fear (and
in many cases endure) costly and extensive trials when
they create, produce, or distribute the sort of information
technology that can be used for copyright infringement.
They would often be left guessing as to how a court, upon
later review of the product and its uses, would decide
when necessarily rough estimates amounted to sufficient
evidence. They would have no way to predict how courts
would weigh the respective values of infringing and nonin-
fringing 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 com-
mercial 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
Cite as: 545 U. S. ____ (2005) 13
BREYER, J., concurring
most difficult of the three. I do not doubt that a more
intrusive Sony test would generally provide greater reve-
nue 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 differ-
ent 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 crea-
tion, production, or distribution of the technology an ex-
ceptional 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 seri-
ous 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 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 this is not to doubt the basic need to protect copy-
righted material from infringement. The Constitution
itself stresses the vital role that copyright plays in advanc-
ing the “useful Arts.” Art. I, §8, cl. 8. No one disputes
that “reward to the author or artist serves to induce re-
lease to the public of the products of his creative genius.”
United States v. Paramount Pictures, Inc., 334 U. S. 131,
158 (1948). And deliberate unlawful copying is no less an
unlawful taking of property than garden-variety theft.
See, e.g., 18 U. S. C. §2319 (criminal copyright infringe-
ment); §1961(1)(B) (copyright infringement can be a predi-
cate act under the Racketeer Influenced and Corrupt
14 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
Organizations Act); §1956(c)(7)(D) (money laundering
includes the receipt of proceeds from copyright infringe-
ment). But these highly general principles cannot by
themselves tell us how to balance the interests at issue in
Sony or whether Sony’s standard needs modification. And
at certain key points, information is lacking.
Will an unmodified Sony lead to a significant diminution
in the amount or quality of creative work produced? Since
copyright’s basic objective is creation and its revenue
objectives but a means to that end, this is the underlying
copyright question. See Twentieth Century Music Corp. v.
Aiken, 422 U. S. 151, 156 (1975) (“Creative work is to be
encouraged and rewarded, but private motivation must
ultimately serve the cause of promoting broad public
availability of literature, music, and the other arts”). And
its answer is far from clear.
Unauthorized copying likely diminishes industry
revenue, though it is not clear by how much. Compare
S. Liebowitz, Will MP3 Downloads Annihilate the
Record Industry? The Evidence So Far, p. 2 (June 2003),
http://www.utdallas.edu/~liebowit/intprop/records.pdf
(all Internet materials as visited June 24, 2005, and avail-
able in Clerk of Court’s case file) (file sharing
has caused a decline in music sales), and Press Release,
Informa Media Group Report (citing Music on the Internet
(5th ed. 2004)) (estimating total lost sales to the music
industry in the range of $2 billion annually),
at http://www.informatm.com, with F. Oberholzer
& K. Strumpf, The Effect of File Sharing on Record
Sales: An Empirical Analysis, p. 24 (Mar. 2004),
www.unc.edu/~cigar/papers/FileSharing_March2004.pdf
(academic study concluding that “file sharing has
no statistically significant effect on purchases of the
average album”), and McGuire, Study: File-Sharing
No Threat to Music Sales (Mar. 29, 2004),
http://www.washingtonpost.com/ac2/wp-dyn/A34300-2004
Cite as: 545 U. S. ____ (2005) 15
BREYER, J., concurring
Mar29?language=printer (discussing mixed evidence).
The extent to which related production has actually and
resultingly declined remains uncertain, though there is
good reason to believe that the decline, if any, is not sub-
stantial. See, e.g., M. Madden, Pew Internet & American
Life Project, Artists, Musicians, and the Internet, p. 21,
http://www.pewinternet.org/pdfs/PIP_Artists.Musicians_
Report.pdf (nearly 70% of musicians believe that file shar-
ing is a minor threat or no threat at all to creative indus-
tries); Benkler, Sharing Nicely: On Shareable Goods and
the Emergence of Sharing as a Modality of Economic
Production, 114 Yale L. J. 273, 351–352 (2004) (“Much of
the actual flow of revenue to artists—from performances
and other sources—is stable even assuming a complete
displacement of the CD market by peer-to-peer distribu-
tion . . . . [I]t would be silly to think that music, a cultural
form without which no human society has existed, will
cease to be in our world [because of illegal file swapping]”).
More importantly, copyright holders at least potentially
have other tools available to reduce piracy and to abate
whatever threat it poses to creative production. As today’s
opinion makes clear, a copyright holder may proceed
against a technology provider where a provable specific
intent to infringe (of the kind the Court describes) is pre-
sent. Ante, at 24 (opinion of the Court). Services like
Grokster may well be liable under an inducement theory.
In addition, a copyright holder has always had the legal
authority to bring a traditional infringement suit against
one who wrongfully copies. Indeed, since September 2003,
the Recording Industry Association of America (RIAA) has
filed “thousands of suits against people for sharing copy-
righted material.” Walker, New Movement Hits Universi-
ties: Get Legal Music, Washington Post, Mar. 17, 2005,
p. E1. These suits have provided copyright holders with
damages; have served as a teaching tool, making clear
that much file sharing, if done without permission, is
16 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
unlawful; and apparently have had a real and significant
deterrent effect. See, e.g., L. Rainie, M. Madden, D. Hess,
& G. Mudd, Pew Internet Project and comScore Media
Metrix Data Memo: The state of music downloading
and file-sharing online, pp. 2, 4, 6, 10 (Apr. 2004),
www.pewinternet.org/pdfs/PIP_Filesharing_April_04.pdf
(number of people downloading files fell from a peak of
roughly 35 million to roughly 23 million in the year follow-
ing the first suits; 38% of current downloaders report
downloading fewer files because of the suits); M. Madden
& L. Rainie, Pew Internet Project Data Memo: Music and
video downloading moves beyond P2P, p. 7 (March 2005),
www.pewinternet.org/pdfs/PIP_Filesharing_March05.pdf
(number of downloaders has “inched up” but “continues to
rest well below the peak level”); Groennings, Note, Costs
and Benefits of the Recording Industry’s Litigation
Against Individuals, 20 Berkeley Technology L. J. 571
(2005); but see Evangelista, Downloading Music and
Movie Files is as Popular as Ever, San Francisco Chroni-
cle, Mar. 28, 2005, p. E1 (referring to the continuing “tide
of rampant copyright infringement,” while noting that the
RIAA says it believes the “campaign of lawsuits and public
education has at least contained the problem”).
Further, copyright holders may develop new technologi-
cal devices that will help curb unlawful infringement.
Some new technology, called “digital ‘watermarking’ ” and
“digital fingerprint[ing],” can encode within the file infor-
mation about the author and the copyright scope and date,
which “fingerprints” can help to expose infringers. RIAA
Reveals Method to Madness, Wired News, Aug. 28, 2003,
http://www.wired.com/news/digiwood/0,1412,60222,00.html;
Besek, Anti-Circumvention Laws and Copyright: A Report
from the Kernochan Center for Law, Media and the
Arts, 27 Colum. J. L. & Arts 385, 391, 451 (2004). Other
technology can, through encryption, potentially restrict
users’ ability to make a digital copy. See J. Borland,
Cite as: 545 U. S. ____ (2005) 17
BREYER, J., concurring
Tripping the Rippers, C/net News.com (Sept. 28, 2001),
http://news.com.com/Tripping+the+rippers/2009=1023_3=
273619.html; but see Brief for Bridgemar Services Ltd. as
Amicus Curiae 5–8 (arguing that peer-to-peer service
providers can more easily block unlawful swapping).
At the same time, advances in technology have discour-
aged unlawful copying by making lawful copying (e.g.,
downloading music with the copyright holder’s permission)
cheaper and easier to achieve. Several services now sell
music for less than $1 per song. (Walmart.com, for exam-
ple, charges $0.88 each). Consequently, many consumers
initially attracted to the convenience and flexibility of
services like Grokster are now migrating to lawful paid
services (services with copying permission) where they can
enjoy at little cost even greater convenience and flexibility
without engaging in unlawful swapping. See Wu, When
Code Isn’t Law, 89 Va. L. Rev. 679, 731–735 (2003) (noting
the prevalence of technological problems on unpaid swap-
ping sites); K. Dean, P2P Tilts Toward Legitimacy,
wired.com, Wired News (Nov. 24, 2004), http://
www.wired.com/news/digiwood/0,1412,65836,00.html; M.
Madden & L. Rainie, March 2005 Data Memo, supra, at 6–
7 (percentage of current downloaders who have used paid
services rose from 24% to 43% in a year; number using
free services fell from 58% to 41%).
Thus, lawful music downloading services—those that
charge the customer for downloading music and pay royal-
ties to the copyright holder—have continued to grow and
to produce substantial revenue. See Brief for Internet
Law Faculty as Amici Curiae 5–20; Bruno, Digital Enter-
tainment: Piracy Fight Shows Encouraging Signs (Mar. 5,
2005), available at LEXIS, News Library, Billboard File
(in 2004, consumers worldwide purchased more than 10
times the number of digital tracks purchased in 2003;
global digital music market of $330 million in 2004 ex-
18 METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
BREYER, J., concurring
pected to double in 2005); Press Release, Informa Media
Report, supra (global digital revenues will likely exceed $3
billion in 2010); Ashton, [International Federation of the
Phonographic Industry] Predicts Downloads Will Hit the
Mainstream, Music Week, Jan. 29, 2005, p. 6 (legal music
sites and portable MP3 players “are helping transform the
digital music market” into “an everyday consumer experi-
ence”). And more advanced types of non-music-oriented
P2P networks have also started to develop, drawing in
part on the lessons of Grokster.
Finally, as Sony recognized, the legislative option re-
mains available. Courts are less well suited than Con-
gress to the task of “accommodat[ing] fully the varied
permutations of competing interests that are inevitably
implicated by such new technology.” Sony, 464 U. S., at
431; see, e.g., Audio Home Recording Act of 1992, 106 Stat.
4237 (adding 17 U. S. C., ch. 10); Protecting Innovation
and Art While Preventing Piracy: Hearing Before the
Senate Comm. on the Judiciary, 108th Cong., 2d Sess.
(July 22, 2004).
I do not know whether these developments and similar
alternatives will prove sufficient, but I am reasonably
certain that, given their existence, a strong demonstrated
need for modifying Sony (or for interpreting Sony’s stan-
dard more strictly) has not yet been shown. That fact,
along with the added risks that modification (or strict
interpretation) would impose upon technological innova-
tion, leads me to the conclusion that we should maintain
Sony, reading its standard as I have read it. As so read, it
requires affirmance of the Ninth Circuit’s determination of
the relevant aspects of the Sony question.
* * *
For these reasons, I disagree with JUSTICE GINSBURG,
but I agree with the Court and join its opinion.