522

"522 use s.” And they answer that question by stating that the Court of Appeals was wrong when it granted summary judgment on the issue in Grokster’s favor. I write to explain why I disagree with them on this matter. I The Court’s opinion in Sony and the record evi dence (as described and analyzed in the many briefs before us) together convince me that the Court of Appeals’ conclusion has adequate legal support. … . 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 product is capable of substantial or commercially significant noninfringing uses. For one thing, petitioners’ (hereinafter MGM) own expert declared that 75% of current files available on Grokster a re infringing and 15% are “likely infringing.” 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, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. Free electronic books and other works from various online publishers, including Project Gutenberg. Public domain and authorized software, such as WinZip"