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Abstract

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR was such a device).[...] For the purposes of this Symposium Article, I follow the Court's view that inducement is a basis for a secondary liability claim against a supplier of a dual-use device separate from a secondary liability claim against such suppliers based merely on "distribution [of the device] with knowledge that unlawful use will occur." And I assume that at least in some circumstances copyright owners will continue to pursue secondary liability claims based on distribution of dual-use devices. My goal here is to consider one aspect of the legal rules governing claims against the maker or supplier of a dual-use technology who manages to avoid any activity that would subject it to liability for inducement--the rules announced by the Supreme Court in Sony.[...] In this Symposium Article, I consider one particular aspect of how to understand Sony's standard of "capable of substantial noninfringing uses": 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? Most discussions of Sony seem to take the analysis as a static one, a question to be answered about any particular device at the time of an infringement suit against the device's distribution. I suggest that the question of a device's substantial noninfringing uses has a dynamic dimension as well, so that a device that might be capable of substantial noninfringing uses today (and could therefore be supplied to the public without creating secondary liability under copyright law) might tomorrow no longer be capable of substantial noninfringing uses (so that supplying the device could result in copyright liability). In the sections that follow, I examine more closely four aspects of this temporally dynamic aspect of the Sony standard of "capable of substantial noninfringing uses." First, as to what constitutes a "noninfringing use," I consider ways in which the very same use of a device might change its character over time, such that the use is noninfringing today but becomes infringing tomorrow (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 even though the noninfringing nature of that use does not change, its substantiality or significance does. Third, I consider briefly changes in the uses of unprotected material. Finally, as to what constitutes uses of which a device is "capable," I consider the possibility that Sony's use of 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 than are the uses to which the device could be put.

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