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Book Chapter

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Jeroen van den Hoven & John Weckert




Cambridge University Press




A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,2 a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held responsible (under a theory of 'secondary liability') for infringements done by others who use the technology.

In its Grokster opinion, the U.S. Supreme Court ducked difficult questions about the consequences of imposing liability on such a technology provider, and instead chose to invent a new doctrine that imposed secondary liability on the basis of a notion of 'intent'. The judges have been accused of sidestepping immensely difficult empirical questions and instead taking the' easy way out' (Wu 2005, p. 241). This chapter asks if the Court's new doctrinal use of 'intent' is in fact as deeply flawed as critics contend. To examine the issue, the chapter employs two broadly defined ethical approaches to suggest~ interpretation of what the Court may have been trying to do. The first 15 one that aims at impersonally maximizing good consequences; the chapter uses the term 'consequentialist' for this approach. The second is neither maximizing nor impersonal; the chapter uses the term 'deontological' for this second approach.

The chapter addresses the role 'intent' can play in each category. The chapter then draws out implications for the Grokster case, arguing that the Court neither fully explored the consequentialist issues, nor provided an adequate account of its nonconsequentialist approach.3 The chapter then draws on a deontological strand in John Locke's theories of property to see what might be said in defense of the Court's approach in Grokster. It concludes that Lockean theory fails to provide a justification for the Court's approach, and that the critics (notably Tim Wu) are right. The Court's mode of analysis in Grokster still stands in need of justification.

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