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

See all articles by Jon Penney

Jon Penney

Harvard Law School; Harvard Kennedy School - Shorenstein Center for Media, Politics, and Public Policy; Harvard University - Berkman Klein Center for Internet & Society; Citizen Lab, University of Toronto

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, Jonathon, 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)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Harvard Kennedy School - Shorenstein Center for Media, Politics, and Public Policy ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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

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

Citizen Lab, University of Toronto ( email )

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

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
255
Abstract Views
811
rank
128,768
PlumX Metrics