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Technology and Judicial Reason: Digital Copyright, Secondary Liability, and the Problem of Perspective

Intellectual Property Journal, Vol. 22, p. 254, 2010

22 Pages Posted: 26 Mar 2012 Last revised: 15 Sep 2016

Jon Penney

University of Oxford - Oxford Internet Institute; Citizen Lab, University of Toronto; Harvard University - Berkman Klein Center for Internet & Society; Dalhousie University - Schulich School of Law

Date Written: April 7, 2010

Abstract

Theories abound about how to understand and explain the development copyright law. Few, however, have focused specifically on the development of secondary liability in digital copyright law. Fewer still have analyzed or theorized the factors that may have driven or influenced that development, particularly judicial reasoning, beyond the obvious point that technology or the Internet has played a role. This essay aims to help fill this gap by investigating the nature of judicial reasoning about technology in secondary liability and digital copyright cases. I will argue that two underlying and competing approaches to technology have deeply influenced judicial reasoning and outcomes in several important digital secondary liability cases. The two “approaches” are what Orin Kerr calls the “internal” and “external” perspectives "of cyberlaw." I analyze several important secondary liability copyright cases where, I argue, the perspective the judge adopts vis-a-vis the technology is a key, even determining, factor. The point is to show how perspective often silently drives judicial reasoning about technology and, thus, secondary liability. I also provide thoughts on the implications of these findings, for scholars, lawyers and judges.

Keywords: copyright, digital copyright, secondary liability, intellectual property, cyberlaw, judicial reasoning, technology

Suggested Citation

Penney, Jon, Technology and Judicial Reason: Digital Copyright, Secondary Liability, and the Problem of Perspective (April 7, 2010). Intellectual Property Journal, Vol. 22, p. 254, 2010. Available at SSRN: https://ssrn.com/abstract=2029047

Jonathon Penney (Contact Author)

University of Oxford - Oxford Internet Institute ( email )

1 St. Giles
University of Oxford
Oxford OX1 3PG Oxfordshire, Oxfordshire OX1 3JS
United Kingdom

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA Nova Scotia 02138
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
PO Box 15000
Halifax, Nova Scotia B3H 4R2
Canada

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