The Temporal Dynamics of 'Capable of Substantial Noninfringing Uses'

28 Pages Posted: 16 Dec 2007

See all articles by R. Anthony Reese

R. Anthony Reese

University of California, Irvine School of Law


The Supreme Court's Grokster decision purports to leave in place the test announced in Sony for analyzing secondary liability claims against a defendant who merely supplies a copying device (without inducing users of the device to infringe): liability in such circumstances is proper only if the device is not capable of substantial noninfringing uses. This Symposium Article considers one aspect of how to understand the Sony standard - the temporal element of such capability. Does the passage of time affect whether a device is capable of substantial noninfringing uses, and if so how? I suggest that the test has a temporally dynamic dimension, so that a device that might be capable of substantial noninfringing uses today might no longer be capable of such uses tomorrow.

Part I considers how the substantial noninfringing uses of a device might change over time. First, as to what constitutes a noninfringing use, I consider ways in which the very same use of a device might change its character, such that the use is noninfringing today but later becomes infringing (or vice versa). Second, as to whether the noninfringing uses of a device are substantial, I consider how the amount of a particular noninfringing use might change over time, so that the substantiality or significance of noninfringing uses changes. Third, I consider briefly changes in the uses of unprotected material.

Part II considers how to determine the uses of which a device is capable, and suggests that the term capable might be interpreted not to refer to the device's technological capacity but rather to the ways in which people actually use the device, which may be significantly more subject to change over time. I argue that Justices Ginsburg and Breyer, in their concurring opinions in Grokster, in fact view the Sony test this way, as asking whether there is a reasonable prospect or plausible likelihood that over time a substantial portion of the actual uses to which the device is put will be noninfringing uses. Thus, both opinions can be read to suggest that a device supplier is shielded by Sony only if the device either is already widely used for legitimate, unobjectionable purposes as Sony itself stated, or if it is likely to become widely used for such purposes in the future.

Part III concludes by briefly identifying some of the implications of this temporally dynamic view of the capable of substantial noninfringing uses test.

Keywords: Copyright, Secondary Liability, Sony

JEL Classification: K39, 034

Suggested Citation

Reese, R. Anthony, The Temporal Dynamics of 'Capable of Substantial Noninfringing Uses'. Michigan Telecommunications and Technology Law Review, Vol. 13, No. 1, 2006. Available at SSRN:

R. Anthony Reese (Contact Author)

University of California, Irvine School of Law ( email )

401 East Peltason Drive, Suite 1000
Irvine, CA 92697-1000
United States


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