Two decades before Napster, the movie industry tried to ban a then-novel product called a Betamax video recorder made by Sony. Their claim: every time a VCR was used to tape a copyrighted program shown on TV, the user violated the copyright law. By supplying the means to do so, knowing full well what would happen, Sony was contributing to the infringement. But when the evidence showed that most owners used their VCRs for “timeshifting”—

taping a program to watch at a more convenient time—the Court ruled against Sony. There was nothing wrong with time-shifting, the Court found, making VCRs “capable of commercially significant noninfringing uses.” Under those circumstances, the manufacturer could not be faulted solely on the basis of its sale and distribution of the product.

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).

When the Court ruled against Grokster, without overruling the Sony precedent, Justice Ginsberg called for a re-writing of Sony. Concurring Justice Breyer disagreed:

… Sony’s rule, as I interpret it, has provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.

Sony’s rule is clear. That clarity allows those who develop new products that are capable of substantial noninfringing uses to know, [beforehand], 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 specifically intended for—copyright infringement, deterrence 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…. 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 not] descramblers….
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….

a. How does peer-to-peer software differ from a VCR? Do those technological differences seem ethically significant to you? The differences in use?

b. Do you agree with where Justice Breyer has drawn the line here? Why or why not?