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

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.