1887
MINDS, MACHINES, AND THE LAW: THE CASE OF
VOLITION IN COPYRIGHT LAW
Mala Chatterjee * & Jeanne C. Fromer **
The increasing prevalence of ever-sophisticated technology permits
machines to stand in for or augment humans in a growing number of
contexts. The questions of whether, when, and how the so-called actions
of machines can and should result in legal liability thus will also be-
come more practically pressing. One important set of questions that the
law will inevitably need to confront is whether machines can have men-
tal states, or—at least—something suciently like mental states for the
purposes of the law. This is because a number of areas of law have
explicit or implicit mental state requirements for the incurrence of legal
liability. Thus, in these contexts, whether machines can incur legal lia-
bility turns on whether a machine can operate with the requisite mental
state. Consider the example of copyright law. Given the long history of
mechanical copying, courts have already faced the question of whether a
machine making a copy can have the mental states required for liability.
They have often answered with a resounding, unconditional “no.” But
this Essay seeks to challenge any generalization that machines cannot
operate with a mental state in the eyes of the law. Taking lessons from
philosophical thinking about minds and machines—in particular, the
conceptual distinction between “conscious” and “functional” properties
of the mind—this Essay uses copyright’s volitional act requirement as a
case study to demonstrate that certain legal mental state requirements
might seek to track only the functional properties of the states in
question, even ones which can be possessed by machines. This Essay
concludes by considering how to move toward a more general framework
for evaluating the question of machine mental states for legal purposes.
* Law Clerk for the Honorable Judge Robert D. Sack, United States Court of
Appeals for the Second Circuit; Ph.D. Candidate in Philosophy, New York University;
Fellow, Engelberg Center for Innovation Law and Policy; Visiting Fellow, Information
Society Project, Yale Law School; J.D., New York University School of Law 2018.
** Professor of Law, New York University School of Law. We thank Arnaud Ajdler,
Jack Balkin, Barton Beebe, Colin Bradley, Christopher Buccafusco, Dan Burk, David
Chalmers, Colleen Chien, Rebecca Crootof, Brian Frye, Eric Goldman, Michael Grynberg,
Nathan Gusdorf, Scott Hemphill, Ben Holguín, Bert Huang, Arden Koehler, Andrew Lee,
S. Matthew Liao, Jeffrey Lipshaw, Michael Meurer, Liam Murphy, Betsy Rosenblatt, Olga
Russakovsky, Matthew Sag, Erick Sam, Jason Schultz, Jule Sigall, Christopher Sprigman,
Jeff Stein, Katherine Strandburg, Olivier Sylvain, Jacob Victor, Patrick Winston, Felix Wu,
Gideon Yaffe, and participants at workshops at New York University School of Law, Yale
Law School, the 2019 Works in Progress in Intellectual Property Colloquium, and the
Columbia Law Review Symposium on “Common Law for the Age of AI,” for choosing to
share knowledgeable comments. Thanks to Moses Dyckman for helpful research assis-
tance. Jeanne Fromer gratefully acknowledges support from the Filomen D’Agostino and
Max E. Greenberg Research Fund.
1888 COLUMBIA LAW REVIEW [Vol. 119:1887
INTRODUCTION
With the increasing prevalence of ever more sophisticated tech-
nology—which permits machines to stand in for or augment humans in a
growing number of contexts—the questions of whether, when, and how
the so-called actions of machines can and should result in legal liability
will become more practically pressing.
1
Although the law has yet to fully
grapple with questions such as whether machines are (or can be)
suciently humanlike to be the subjects of law, philosophers have long
contemplated the nature of machines.
2
Philosophers have considered,
for instance, whether human cognition is fundamentally computation—
such that it is in principle possible for future artificial intelligences (AI)
to possess the properties of human minds, including consciousness,
semantic understanding, intention, and even moral responsibility—or if
humans and machines are instead fundamentally dierent, no matter
how sophisticated AI becomes.
3
It is thus unsurprising that, in thinking
through how the law should accommodate and govern an increasingly
AI-filled world, the lessons and frameworks to be gleaned from these
philosophical discussions will have undeniable relevance.
One important set of questions that the law will inevitably need to
confront is whether machines can have mental states, or—at least—some-
thing suciently like mental states for the purposes of the law. This is
because a wide range of areas of law have explicit or implicit mental state
requirements for the incurrence of legal liability.
4
Consider, for example,
questions of intent and recklessness versus negligence in tort law; mens
rea and actus reus in criminal law; oer and acceptance in contract law;
and, as we will see, infringement and authorship in copyright law. In each
of these contexts, the law either implicitly or explicitly asks for the pres-
ence of some particular mental state on the part of the actors in ques-
tion. Whether the operations of machines can incur legal liability—and
what kind of liability they can incur—would thus often seem to turn on
whether a machine is regarded as operating with the mental state
required.
In some contexts, the decision already seems to have been made that
machines can never possess the mental states required for liability. Con-
sider copyright law’s volitional act requirement for infringement.
Copyright law has generally claimed that machines making copies of pro-
tected material lack the requisite volition for this conduct to give rise to
legal liability on the part of those responsible for the machine, even
when the machine has been designed to make copies, often of copy-
righted works.
5
In other contexts, such as criminal and tort law, the
1. See infra section I.B.
2. See infra Part III.
3. See infra Part III.
4. See infra section I.A.
5. See infra Part II.
2019] MINDS, MACHINES, AND THE LAW 1889
question of machines’ capacity for mental states remains open and
underexplored.
6
This Essay aims to challenge any hasty and blanket generalization
that machines cannot have mental states as a legal matter, drawing on
philosophical thinking surrounding mental states and using copyright’s
volitional act requirement as a case study. In so doing, this Essay con-
cludes that—as a matter of copyright doctrine—a copying technology
might be suciently “volitional” for the technology provider to be held
directly liable for the technology’s so-called actions in producing copies;
and—as a matter of general legal theory—machines in some contexts
might be capable of being suciently “mental” to count as agents of the
humans behind them, depending on the aims of the area of law in ques-
tion.
7
This conclusion is thus not merely of philosophical interest but
one with practical implications for determinations of legal liability. In the
context of copyright law, this Essay’s chosen case study, this conclusion
has implications for who is and is not directly accountable for the copy-
ing of protected material and for the law’s ability to eectuate its goals of
encouraging the creation and dissemination of expressive works.
To mount this Essay’s challenge, after giving an overview of mental
states in the law and the puzzle raised by technological advancement in
Part I, as well as the specific challenges posed by copyright law in Part II,
Part III of the Essay recounts two of the most influential philosophical
discussions on minds and machines, and the resulting theoretical distinc-
tion between the conscious and functional properties of mental states.
Using this distinction as a framework, this Essay argues that it is an open
question whether the law’s mental state requirements seek to track the
conscious or merely functional properties of the particular mental state
in question,
8
and the analysis depends on the ultimate aims of the rele-
vant area of law. Part IV then defends the view that copyright law’s vo-
litional act requirement might be interested in merely functional
6. See generally Mark A. Geistfeld, A Roadmap for Autonomous Vehicles: State Tort
Liability, Automobile Insurance, and Federal Safety Regulation, 105 Calif. L. Rev. 1611
(2017) (tort liability); Gabriel Hallevy, “I, Robot—I, Criminal”—When Science Fiction
Becomes Reality: Legal Liability of AI Robots Committing Criminal Oenses, 22 Syracuse
Sci. & Tech. L. Rep. 1 (2010) (criminal law); Ignatius Michael Ingles, Note, Regulating
Religious Robots: Free Exercise and RFRA in the Time of Superintelligent Artificial
Intelligence, 105 Geo. L.J. 507, 516 n.67 (2017) (criminal law).
7. See infra Parts IV–V.
8. Note that there are arguably nonconscious mental states aside from functional
mental states, such as intentional and computational states. In this way, the distinction on
which we focus—consciousness versus functionality—is not exhaustive, as one could simi-
larly ask whether the law cares about intentionality, computation, and so forth. Nonethe-
less, the Essay focuses on consciousness versus functionality not only for the sake of sim-
plicity, but also because this distinction is plausibly the most important one for legal pur-
poses. The Essay otherwise leaves the question of whether intentionality (or other non-
conscious, nonfunctional properties of mental states) should ever matter to the law for
exploration in future work.
1890 COLUMBIA LAW REVIEW [Vol. 119:1887
properties, which could—in principle—be replicated by machines. Next,
Part V considers which functional properties copyright law might seek to
track and what a machine might have to look like to be “functionally vo-
litional” under copyright law, to count as the technology provider’s
agent, and thereby to give rise to direct liability. These relevant func-
tional properties include the ability to pause and analyze the nature of
the work in question before “choosing” to undertake an act of copying,
one which might cause exposure to liability. On the basis of this frame-
work, this Essay concludes that machines with the appropriate func-
tionality might satisfy copyright law’s volitional act requirement, thus
forming the basis for holding technology providers directly liable for in-
fringement. Finally, generalizing this Essay’s framework, Part VI oers
preliminary thoughts on machines and mental state requirements in the
contrasting contexts of criminal law and copyright authorship doctrine,
as well as a general hypothesis regarding when the law is interested in
conscious versus merely functional properties of the mental states in
question.
I.
MENTAL STATES, TECHNOLOGY, AND THE LAW
This Part explores the intersection of mental states and technology
under the law. It first provides an overview of the law’s mental state re-
quirements, and then surveys how businesses might use machines in lieu
of humans to perform various operations that could—or would—incur
liability if performed by a human, such that technological advancement
inevitably raises the legal question of machine mental states.
A. Mental State Requirements in the Law
Mental state requirements for legal liability are pervasive. The most
familiar include requirements of purpose (or intent), knowledge, and
recklessness, in contrast to negligence (which is not itself a mental state
but might be understood as distinguishable from, say, recklessness by the
absence of such a state).
9
Each relates in differing ways to beliefs or de-
sires.
10
Volition—which might be defined as the cause of willful actions,
and which thus distinguishes actions from involuntary bodily
9. See, e.g., Model Penal Code § 2.02 (Am. Law Inst. 1985); see also Kyron Huigens,
On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 453 (“In negligence
and the other non-intentional fault doctrines, fault is found not in a discrete mental state,
but in a broader set of facts surrounding the oense.”).
10. See Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 464–65
(1992) (“Properly understood, the principal mental state concepts do not reflect a single
hierarchy of legal significance. Rather, they conceal two distinct mental state hierarchies,
of desire and belief, as well as a third hierarchy, of conduct, which does not essentially
involve mental states.”).
2019] MINDS, MACHINES, AND THE LAW 1891
movements
11
—can be understood as a mental state as well.
12
Thus, in
addition to any further mens rea requirements, any area of law requiring
a willful action for liability is implicitly asking for a mental state as well,
because the presence of volition is what makes a movement count as a
willful action (rather than, say, a muscle spasm) in the first place.
13
Men-
tal state requirements thus exist in nearly every area of law, including
criminal law, torts, and contract.
14
Indeed, these requirements are so
prevalent that there is even a legal category arguably defined in terms of
an absence of any mens rea beyond volition itself: namely, strict liability.
15
These requirements are premised on the assumption that the mind—and
not just the body—matters to the law.
16
In other words, when such re-
quirements exist, the body might move to do something prohibited, but
only when this is conjoined with the corresponding illicit mental state is
this a prohibited action.
As an evidentiary matter, discerning the presence of a mental state
in a human requires “mind reading,” so to speak, because people cannot
directly observe or measure a mental state.
17
Nonetheless, the law typi-
cally feels comfortable—though perhaps it should not
18
—answering the
question of whether a human had the required mental state. In light of
these requirements, as machines become more pervasive in performing
operations that humans traditionally performed, the law will find itself
needing to assess not just the permissibility of machines’ operations but
also whether they have operated with an illicit mental state.
11. See Michael S. Moore, Act and Crime: The Philosophy of Action and Its
Implications for Criminal Law 113–65 (1993) [hereinafter Moore, Act and Crime] (defend-
ing a theory of volition as the mental state that causes actions).
12. See, e.g., id. at 115 (“‘Volition’ names a state or an event within the mind of the
actor.”).
13. See id. at 113–65.
14. See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and
Contracts, 42 San Diego L. Rev. 533, 575–82 (2005) (contracts); Simons, supra note 10, at
468–73 (criminal law and torts).
15. See Simons, supra note 10, at 464.
16. See, e.g., Keren Shapira-Ettinger, The Conundrum of Mental States: Substantive
Rules and Evidence Combined, 28 Cardozo L. Rev. 2577, 2579–81 (2007) (“[C]riminal law
has adopted the vague metaphysical dualistic vision between a forbidden act and a state of
mind that accompanied it.”). Some have criticized this assumption, suggesting it ought to
be replaced with an integrated actus reus and mens rea. See, e.g., Douglas N. Husak,
Philosophy of Criminal Law 126 (1987) (advocating for this integration “as an indivisible
product of both what one thinks and what one does”).
17. See Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional
Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States, 62 Stan. L. Rev.
1119, 1129–30 (2010) (“Because we cannot presently read someone’s mind to determine
her mens rea at the time of the crime, the jury is often told it can rely on the objective
circumstances surrounding the criminal’s conduct to draw inferences about her state of
mind.”).
18. See, e.g., James A. Macleod, Belief States in Criminal Law, 68 Okla. L. Rev. 497,
502–03, 514–34 (2016) (drawing on experimental epistemology to criticize how juries
likely decide on the presence of a mental state).
1892 COLUMBIA LAW REVIEW [Vol. 119:1887
B. The Present and Future of Technology
Increasingly, tasks once performed by only humans are being carried
out or augmented by machines, which often perform better than hu-
mans ever could. In the copyright space alone—on which the Essay
elaborates in the next Part—there are devices that can now recognize
songs and other expressive content by listening to them,
19
virtual assis-
tants and bots that can locate and play user-requested content,
20
and soft-
ware that can use machine learning techniques to create artwork based
on a model derived from 15,000 portraits painted over the past six centu-
ries.
21
A piece of art created using this software recently sold at auction
for over $400,000.
22
Thus, questions of so-called machine liability are becoming more
pressing. Legal scholars have already been puzzling over a tort liability
regime for self-driving cars.
23
Plausibly, we might soon find ourselves ask-
ing whether a bot producing defamatory content about a public figure
can itself have actual malice; whether an algorithm assessing risk can
have discriminatory intent; or whether the price-setting systems of
competing businesses can collude from the perspective of antitrust law.
And in the copyright space, we might wonder whether technology crea-
tors or owners can be directly liable for copyright infringement when a
bot fetches an infringing copy of a song in response to a user’s request
for that song or when software taught on portraits produces an artwork
that is copied from and substantially similar to an existing portrait on
which the software was trained.
19. E.g., Trent Gillies, Shazam Names That Tune, Drawing in Money and Users,
CNBC (June 14, 2015), https://www.cnbc.com/2015/06/14/shazam-names-that-tune-
drawing-in-money-and-users.html [https://perma.cc/6DEK-L2KV].
20. E.g., Taylor Martin, 9 Alexa Tips for Music Lovers, CNET (Jan. 22, 2019),
https://www.cnet.com/how-to/alexa-tips-for-music-lovers [https://perma.cc/4ATW-C6HX].
21. Is Artificial Intelligence Set to Become Art’s Next Medium?, Christie’s (Dec. 12,
2018), https://www.christies.com/features/A-collaboration-between-two-artists-one-human-
one-a-machine-9332-1.aspx [https://perma.cc/R6NB-RU5F].
22. Id.
23. See, e.g., Geistfeld, supra note 6, at 1691–94 (arguing that a combination of state
products liability law and federal regulations can provide an eective framework for self-
driving cars); Gary E. Marchant & Rachel A. Lindor, The Coming Collision Between
Autonomous Vehicles and the Liability System, 52 Santa Clara L. Rev. 1321, 1335–39
(2012) (suggesting “legal and policy tools that may help protect manufacturers [of auton-
omous vehicles] from liability,” including the assumption of risk defense, legislative limi-
tations on liability, and federal preemption of state tort actions); Bryant Walker Smith,
Automated Driving and Product Liability, 2017 Mich. St. L. Rev. 1, 2 (“[T]he current pro-
duct liability regime, while imperfect, is probably compatible with the adoption of auto-
mated driving systems.”); Harry Surden & Mary-Anne Williams, Technological Opacity,
Predictability, and Self-Driving Cars, 38 Cardozo L. Rev. 121, 178–80 (2016) (describing
the potential for tort liability to encourage autonomous car manufacturers to program
more predictable movements, as well as the ability for autonomous cars to transform the
issue of fault in car accidents by providing a “‘black box’ record”).
2019] MINDS, MACHINES, AND THE LAW 1893
II. THE COPYRIGHT EXAMPLE: A LONG HISTORY OF MECHANICAL COPYING
This Part uses copyright infringement as this Essay’s case study for
the challenge posed for the law by mental states and machines. In
particular, this Part recounts copyright law’s extensive history of mechani-
cal copying, which has long provoked courts to explore whether and
when machines and their owners can be directly liable for infringement.
This history has led courts to develop a volitional act requirement for
copyright infringement, while suggesting that this requirement—though
always satisfied by human actions—can never be satisfied by machines.
This Part also explains why the volitional act requirement ought to be
understood as a mental state. For these reasons, the requirement pro-
vides a good test bed to explore whether machines should ever possess
mental states as a legal matter.
A. Background
By way of background, American copyright law protects “original
works of authorship fixed in any tangible medium of expression,” includ-
ing literary works, sound recordings, and movies.
24
A copyright holder
receives, among other things, the exclusive right to reproduce the work,
distribute copies of it, and prepare derivative works,
25
typically until sev-
enty years after the author’s death.
26
Copyright protection extends to the
expression of particular ideas rather than to the ideas themselves.
27
Yet
protection actually reaches well beyond the literal work to works that are
copied and substantially similar,
28
“else a plagiarist would escape by
immaterial variations.”
29
The most widely embraced theory of copyright law in America is
utilitarian and, in particular, economic.
30
According to this theory,
24. 17 U.S.C. § 102(a) (2012).
25. Id. § 106.
26. Id. § 302(a).
27. See id. § 102(b); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.
1930).
28. Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007) (citing Herzog v.
Castle Rock Entm’t, 193 F.3d 1241, 1249 (11th Cir. 1999)).
29. Nichols, 45 F.2d at 121.
30. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558
(1985) (embracing an economic theory of copyright, and stating that “[b]y establishing a
marketable right to the use of one’s expression, copyright supplies the economic incentive
to create and disseminate ideas”); Shyamkrishna Balganesh, Foreseeability and Copyright
Incentives, 122 Harv. L. Rev. 1569, 1576–77 (2009) (“[C]opyright law in the United States
has undeniably come to be understood almost entirely in utilitarian, incentive-driven
terms.”); Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 Va. L. Rev.
1745, 1750–52 (2012) (“The Supreme Court, Congress, and many legal scholars consider
utilitarianism the dominant purpose of American copyright and patent law.”); William M.
Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud.
325, 326 (1989) (proposing an “economic model of copyright protection”).
1894 COLUMBIA LAW REVIEW [Vol. 119:1887
copyright law provides the incentive of exclusive rights for a limited dura-
tion to authors to motivate them to create and distribute culturally val-
uable works.
31
Without this incentive, the theory goes, authors might not
invest the time, energy, and money necessary to create and distribute
these works because they might be copied cheaply and easily by free rid-
ers, eliminating authors’ ability to profit from their works.
32
By allowing a
copyright holder to recover damages from and enjoin an infringer that
breaches the copyright holder’s exclusive rights—thereby undermining
copyright’s pecuniary incentive—the law preserves the copyright
incentive.
33
A utilitarian theory of copyright law rests on the premise that the
benefit to society of creators crafting valuable works osets the costs to
society of the incentives the law oers to creators.
34
To prevent excessive
rights that would undercut the goals of dissemination of works and of
creation that builds on preexisting works, copyright law therefore limits
copyright’s duration and scope in certain ways.
35
For example, copyright
law excuses some third-party uses that would otherwise be infringing by
deeming them to be “fair use.”
36
The fair use doctrine enables third par-
ties to create culturally valuable works that must borrow from the original
work in some capacity in order to succeed, often transforming it.
37
Moreover, copyright infringement is understood to be a strict lia-
bility oense. At the extreme, a person can infringe another’s copyright
even if they copy from the third party’s work without any awareness of the
31. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197,
1197 (1996).
32. See id.
33. See Roger D. Blair & Thomas F. Cotter, An Economic Analysis of Damages Rules
in Intellectual Property Law, 39 Wm. & Mary L. Rev. 1585, 1617–46 (1998) (“[A] simple
model of intellectual property rights suggests that the prevailing plainti in a . . . copy-
right . . . infringement action should be able to recover the greater of her lost profit
attributable to the infringement, or the defendant’s profit so attributable . . . .”); Jeanne C.
Fromer & Mark A. Lemley, The Audience in Intellectual Property Infringement, 112 Mich.
L. Rev. 1251, 1299–1300 (2014) (discussing the “multiple vantage points” used when
assessing a copyright infringement as a way to structure when there is infringement lia-
bility and thus preserve copyright’s incentive).
34. See Mark A. Lemley, The Economics of Improvement in Intellectual Property
Law, 75 Tex. L. Rev. 989, 996–97 (1997).
35. See id. at 996–98.
36. 17 U.S.C. § 107 (2012).
37. See Campbell v. Acu-Rose Music, Inc., 510 U.S. 569, 577 (1994) (“The fair use
doctrine thus ‘permits [and requires] courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that law is designed to
foster.’” (alteration in original) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)));
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111–16 (1990)
(“Quotation can be vital to the fulfillment of the public-enriching goals of copyright law.
The first fair use factor calls for a careful evaluation whether the particular quotation is of
the transformative type that advances knowledge and the progress of the arts . . . .”).
2019] MINDS, MACHINES, AND THE LAW 1895
fact that they have copied.
38
For example, singer Michael Bolton was
found liable for infringement for subconsciously copying the Isley
Brothers’ song “Love Is a Wonderful Song” decades later in his song of
the same name.
39
As Judge Learned Hand explained,
Everything registers somewhere in our memories, and no one
can tell what may evoke it. . . .
. . . Once it appears that another has in fact used the copyright
as the source of his production, he has invaded the author’s
rights. It is no excuse that in so doing his memory has played
him a trick.
40
B. The Player Piano Roll
In light of a consistent stream of advancements in copying tech-
nologies, copyright law has already had to grapple with whether and
when copies made by machines constitute copyright infringement.
41
One
of the most striking illustrations of this dates back to the early twentieth
century, when copyright law faced player piano rolls: rolls of paper with
perforations in accordance with musical works.
42
When installed on a
player piano, these rolls cause the piano to play notes in sequence as
determined by the position and length of the perforations, thereby per-
forming the song encoded therein. In 1908, the Supreme Court consid-
ered in White-Smith Music Publishing Co. v. Apollo Co. whether the piano
rolls—which would be “read” by a machine to play the encoded musical
composition rather than by a human—were “copies” of the musical
composition, thereby constituting copyright infringement.
43
The plainti
in the case owned copyrights in certain musical compositions, and the
38. See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482–85 (9th Cir. 2000)
(stating that “[s]ubconscious copying has been accepted” alongside proof of widespread
dissemination to satisfy proof of the reasonable access element of copyright infringe-
ment); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998–99 (2d Cir. 1983)
(“It is not new law in this circuit that when a defendant’s work is copied from the plain-
ti’s, but the defendant in good faith has forgotten that the plainti’s work was the source
of his own, such ‘innocent copying’ can nevertheless constitute an infringement.”).
39. Three Boys Music, 212 F.3d at 484–85.
40. Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147–48 (S.D.N.Y. 1924).
41. Copyright law would likely not exist in the first place without the printing press,
which made the large-scale copying of written material plausible. See Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 430 (1984) (“Indeed, it was the invention of a
new form of copying equipment—the printing press—that gave rise to the original need
for copyright protection.”).
42. Zhengshan Shi, Kumaran Arul & Julius O. Smith, Modeling and Digitizing
Reproducing Piano Rolls, in Proceedings of the 18th International Society for Music
Information Retrieval Conference 197, 197 (Xiao Hu, Sally Jo Cunningham, Doug Turnbull &
Zhiyao Duan eds., 2017), https://ismir2017.smcnus.org/wp-content/uploads/2017/10/
25_Paper.pdf [https://perma.cc/W9EH-JLJL].
43. 209 U.S. 1, 17–18 (1908). Under the copyright statute in place at the time—and
continuing through its current version—copyright law deemed copying of copyrighted
works to be infringement. Id. at 9.
1896 COLUMBIA LAW REVIEW [Vol. 119:1887
defendant was in the business of making and selling player pianos and
piano rolls.
44
The Supreme Court ultimately held that the piano roll was not a
copy of the musical composition it represented (and therefore the plain-
ti could not prohibit this type of reproduction by the defendant).
45
In
particular, the Court reasoned that something could not count as an in-
fringing use unless it was “put in a form which [humans] can see and
read.”
46
Because people did not read piano rolls as they read sheet music,
piano rolls did not satisfy this requirement. The Court thought it irrele-
vant that “[t]hese perforated rolls are parts of a machine which, when
duly applied and properly operated in connection with the mechanism
to which they are adapted, produce musical tones in harmonious
combination.”
47
In its ruling, the Court thus adopted the view that machines were un-
like humans for purposes of copyright infringement: Machine-read mate-
rials did not constitute copyright infringement unless humans can read
the same material as well.
48
However, Congress evidently did not share
the Supreme Court’s broad view on this distinction between humans and
machines.
49
Although there are arguably justifications for a focus on hu-
man readability, White-Smith’s formalism provoked severe criticism.
50
Even
if a person could not read or hear the musical composition encoded in a
piano roll, that same person could still consume the work with the help
of a player piano.
51
As a practical matter, White-Smith meant that copiers
could circumvent copyright protections by creating copies of a work that
were unreadable by humans, but could be made comprehensible with
the aid of a machine.
52
The following year, Congress overturned the specific holding of
White-Smith by granting copyright holders in musical works the right to
control the mechanical reproduction of their works and instituting a
compulsory license scheme for manufacturers of piano rolls and other
44. Id. at 8–9.
45. Id. at 18.
46. Id. at 17.
47. Id. at 18.
48. Id. at 17–18.
49. See Yvette Joy Liebesman, Redefining the Intended Copyright Infringer, 50
Akron L. Rev. 765, 790 (2016) (stating that “Congress amended the Copyright Act to in-
clude these works under its purview” (citing An Act to Amend and Consolidate the Acts
Respecting Copyright, ch. 320, 35 Stat. 1075, 1081–82 (1909)).
50. See, e.g., H.R. Rep. No. 94-1476, at 52 (1976) (criticizing White-Smith for its “arti-
ficial and largely unjustifiable distinction[] . . . under which statutory copyrightability . . .
has been made to depend upon the form or medium in which the work is fixed”).
51. White-Smith, 209 U.S. at 8–10.
52. See Liebesman, supra note 49, at 787–90 (finding that the Supreme Court’s de-
cisions “confin[ing] copies of musical works . . . to those specific mediums of expression
defined by Congress . . . resulted in a larger reach of legal copying and subsequently a
smaller cohort of who was an intended infringer”).
2019] MINDS, MACHINES, AND THE LAW 1897
mechanical reproductions.
53
And almost seventy years later, Congress
changed its definition for copyright law of “copies” to include not only
“material objects” that can be read or perceived “directly” by humans
but also those “from which the work can be perceived, reproduced, or
otherwise communicated . . . with the aid of a machine or device.”
54
With
that definition, Congress took an expansive view of machine-readable
forms of works as “copies,” so long as humans could perceive or read
them via the machine.
C. The Internet
Nonetheless, further questions as to machines’ ability to engage in
copyright infringement subsequently arose, especially as the internet era
dawned in the 1990s. For the first time, machines—computers—inter-
connected on a vast network around the world were copying and trans-
mitting material to one another (and ultimately often to people using
these machines). Any human posting or emailing material that infringed
another’s copyright would therein provoke countless interconnected ma-
chines to make copies of this material as well. Some frustrated copyright
holders sued certain of these users and machine owners—typically,
internet service providers—for copyright infringement.
The foundational case of Religious Technology Center v. Netcom On-Line
Communication Services, Inc. addressed the liability of internet server
owners.
55
Netcom was a suit by the Church of Scientology against both for-
mer minister Dennis Erlich, for uploading messages to Usenet contain-
ing copyrighted church texts and criticism of the church, and internet
service providers, including BBS and Netcom, whose servers created
copies of those messages.
56
The Northern District of California viewed
the liability of the entities deploying these servers as turning on “whether
possessors of computers are liable for incidental copies automatically
made on their computers using their software as part of a process initi-
ated by a third party.”
57
But the court refused to assign liability to the
server owners: “Although copyright is a strict liability statute, there
should still be some element of volition . . . which is lacking where a de-
fendant’s system is merely used to create a copy by a third party.”
58
The
Netcom court thought that because the defendants’ “systems can operate
without any human intervention, . . . the mere fact that Netcom’s system
incidentally makes temporary copies of [the church’s] works does not
53. An Act to Amend and Consolidate the Acts Respecting Copyright § 1(e).
54. Copyright Act of 1976, Pub. L. No. 94-553, § 101, 90 Stat. 2541, 2542 (codified as
amended at 17 U.S.C. § 101 (2012)).
55. 907 F. Supp. 1361 (N.D. Cal. 1995).
56. See id. at 1365–66.
57. Id. at 1368.
58. Id. at 1370.
1898 COLUMBIA LAW REVIEW [Vol. 119:1887
mean Netcom has caused the copying.”
59
The court emphasized the risk
of establishing a contrary rule:
[A contrary rule] would also result in liability for every single
[internet] server in the worldwide link of computers transmit-
ting [the ex-church minister’s] message to every other com-
puter. These parties, who are liable under [the church’s] theory,
do no more than operate or implement a system that is essential
if [internet] messages are to be widely distributed. There is no
need to construe [copyright law] to make all of these parties
infringers.
60
Thus, the Netcom court strongly suggested that—although a human
using a machine to make a copy is thereby volitionally infringing a copy-
right—a machine itself cannot possess the requisite volition to be re-
garded as an infringer, or as thereby “acting” on behalf of the technology
provider.
61
Building on Netcom and its progeny,
62
the Second Circuit further
stressed the dierential treatment of humans and machines with regard
to volition and copyright infringement in Cartoon Network LP v. CSC
Holdings, Inc.
63
In that case, the court held that a cable company’s re-
mote-storage digital video recording system did not directly infringe the
copyrights of a cable television company when cable company customers
requested or played back recordings on this system.
64
For one thing, the
court dismissed the possibility that the cable company satisfied the vo-
litional act requirement for infringement liability by virtue of its “con-
duct in designing, housing, and maintaining a system that exists only to
produce a copy . . . made automatically upon [a] customer’s com-
mand.”
65
For even though the copying was instrumental to the function
of the recording system, the court held that it was the customer request-
ing the recording—rather than the system or its owner—who made the
copy.
66
The court thought that it would have been a dierent situation,
however, had the customer requested a human employee of the cable
system—rather than the machine itself—to make the copy: “In deter-
mining who actually ‘makes’ a copy, a significant dierence exists be-
tween making a request to a human employee, who then volitionally
operates the copying system to make the copy, and issuing a command
59. Id. at 1368–69.
60. Id. at 1369–70. The court left open the possibility that the internet service pro-
viders would instead be liable for contributory infringement. Id. at 1369, 1373–75.
61. See id. at 1370.
62. Cases in the intervening years on this issue include CoStar Grp., Inc. v. LoopNet,
Inc., 373 F.3d 544 (4th Cir. 2004); Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev.
2006); Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F. Supp. 503 (N.D. Ohio 1997);
Marobie-FL, Inc. v. Nat’l Ass’n of Fire Equip. Distribs., 983 F. Supp. 1167 (N.D. Ill. 1997).
63. 536 F.3d 121 (2d Cir. 2008).
64. See id. at 123.
65. Id. at 131.
66. Id.
2019] MINDS, MACHINES, AND THE LAW 1899
directly to a system, which automatically obeys commands and engages in
no volitional conduct.”
67
The Second Circuit seemed to state cate-
gorically that machines—circa 2008—always lack the requisite volition to
be infringers acting on behalf of technology providers, whereas humans,
including human employees, always possess it.
68
While some courts were denying the possibility that machines could
volitionally infringe on behalf of technology providers, others seemed to
ignore the volitional act requirement entirely, instead readily assuming—
without analysis—that computers’ owners had infringed when their ma-
chines automatically copied protected content. For example, in a series
of cases, courts generally found businesses operating search engines not
liable for copying infringing works found online to index and make them
available for user searching.
69
But these courts never paused to question
whether the machines had volitionally copied, proceeding instead to de-
cide that there was in fact a prima facie case of copyright infringement by
the search engine operators but that their copying was nonetheless fair
use.
70
Similarly, the Supreme Court, in American Broadcasting Companies v.
Aereo, Inc., made no mention of volition before finding the owner of
many small internet-connected antennae liable for streaming (that is,
publicly performing) broadcast television programming to subscribers.
71
67. Id.
68. In some ways, a prior decision by the Fourth Circuit had already muddied the
volition waters further. The Fourth Circuit found that an internet service provider lacked
volition when the company had its human employees take a quick look at whether
commercial real estate photographs posted by users seemed to infringe on third parties’
copyrighted material and its computers copied the infringing material to check it against
any new material uploaded by that user. See CoStar Grp. v. LoopNet, Inc., 373 F.3d 544,
556 (4th Cir. 2004). The court elaborated:
The employee’s look is so cursory as to be insignificant, and if it has any
significance, it tends only to lessen the possibility that [the provider]’s
automatic electronic responses will inadvertently enable others to tres-
pass on a copyright owner’s rights. In performing this gatekeeping func-
tion, [the provider] does not attempt to search out or select photo-
graphs for duplication; it merely prevents users from duplicating certain
photographs. . . . [The provider] can be compared to an owner of a copy
machine who has stationed a guard by the door to turn away customers
who are attempting to duplicate clearly copyrighted works. [The pro-
vider] has not by this screening process become engaged as a “copier” of
copyrighted works who can be held liable under . . . the Copyright Act.
Id.
69. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1176–77 (9th Cir. 2007);
Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).
70. Perfect 10, 508 F.3d at 1168; Kelly, 336 F.3d at 822. Perhaps the courts never con-
sidered volition because the machines’ owners in these cases provoked the copying in the
first instance. Cf. Robert C. Denicola, Volition and Copyright Infringement, 37 Cardozo L.
Rev. 1259, 1279–80 (2016) (“[I]f no third party has participated in the alleged infringe-
ment, defendants rarely invoke the volition requirement; when they do, the issue is quickly
resolved in favor of the plaintis.”).
71. See 134 S. Ct. 2498, 2498–511 (2014).
1900 COLUMBIA LAW REVIEW [Vol. 119:1887
In dissent, Justice Scalia lambasted the majority for failing to consider
whether volition was present as a prerequisite to finding infringement:
Although we have not opined on the issue, our cases are fully
consistent with a volitional-conduct requirement. . . .
The volitional-conduct requirement is not at issue in most
direct-infringement cases; the usual point of dispute is whether
the defendant’s conduct is infringing (e.g., Does the defendant’s
design copy the plainti’s?), rather than whether the defendant
has acted at all (e.g., Did this defendant create the infringing
design?). But it comes right to the fore when a direct-infringe-
ment claim is lodged against a defendant who does nothing
more than operate an automated, user-controlled system.
Internet-service providers are a prime example. When one user
sends data to another, the provider’s equipment facilitates the
transfer automatically. Does that mean that the provider is di-
rectly liable when the transmission happens to result in the
“reproduc[tion]” of a copyrighted work? It does not. The pro-
vider’s system is “totally indierent to the material’s content,”
whereas courts require “some aspect of volition” directed at the
copyrighted material before direct liability may be imposed.
The defendant may be held directly liable only if the defendant
itself “trespassed on the exclusive domain of the copyright
owner.” Most of the time that issue will come down to who se-
lects the copyrighted content: the defendant or its customers.
. . . .
The distinction between direct and secondary liability
would collapse if there were not a clear rule for determining
whether the defendant committed the infringing act. The vo-
litional-conduct requirement supplies that rule; its purpose is
not to excuse defendants from accountability, but to channel
the claims against them into the correct analytical track.
72
Thus, Aereo has caused some to wonder whether the majority had im-
plicitly rejected a volitional act requirement for copyright infringement,
73
72. Id. at 2513–14 (Scalia, J., dissenting) (citations omitted) (first quoting 17 U.S.C.
§ 106(1) (2012); then quoting CoStar Grp., 373 F.3d at 550–51; then quoting id. at 550).
There is a conceptual connection between a volitional act requirement and certain forms
of secondary liability in copyright law. In particular, the Supreme Court has held—with
respect to secondary liability for a provider of peer-to-peer file-sharing software—that “one
who distributes a device with the object of promoting its use to infringe copyright, as
shown by clear expression or other armative steps taken to foster infringement, is liable
for the resulting acts of infringement by third parties.” Metro-Goldwyn-Mayer Studios Inc.
v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005). Just as the presence of volition indicates
that a technology provider has gone beyond merely deploying its automated system to
copy, inducement of third-party infringement indicates that a technology provider has
gone beyond merely providing a system or device that can be used by others to infringe
copyright.
73. E.g., Bruce E. Boyden, Aereo and the Problem of Machine Volition, 2015 Mich. St.
L. Rev. 485; Kyle A. Brown, Comment, Up in the Aereo: Did the Supreme Court Just
Eliminate the Volitional Conduct Requirement for Direct Copyright Infringement?, 46
Seton Hall L. Rev. 243 (2015).
2019] MINDS, MACHINES, AND THE LAW 1901
although the Second and Ninth Circuits have armed the requirement’s
continuing relevance.
74
Owing to the ongoing relevance of volition in
copyright law, it is worth making sense of this requirement, to which the
next section now turns.
D. What Is Volition in Copyright Law?
What exactly is this “volition” mental state required for copyright in-
fringement liability? As this Essay noted earlier, volition might be under-
stood as the mental state that causes willful actions.
75
In other words, the
question of whether some event counts as volitional is the question of
whether it is something genuinely willed or chosen by the so-called actor.
The presence of a volitional mental state as a cause thus distinguishes
involuntary bodily movements—such as those during a seizure—from
voluntary ones.
76
With that distinction, a volition requirement coheres
with the intuition that individuals should be held responsible for, and
only for, that which was under their control.
77
As the Restatement
(Second) of Torts explains, “Some outward manifestation of the de-
fendant’s will is necessary to the existence of an act which can subject
him to liability.”
78
Note that copyright’s volitional act requirement is asking for volition
or control in something very specific: the production of the infringing
copy itself. After all, technology providers have chosen—that is, willfully
acted—in providing copy-making technologies, such that holding them
responsible for resulting infringements would not constitute responsibility
for something entirely out of their control.
79
Nonetheless, volitionally
providing the technology is not sucient for satisfying copyright law’s
volitional act requirement. Instead, copyright requires that the instance
of infringing copying itself be volitional—or itself count as a willful
action on the part of the technology provider—and that the infringing
74. See BWP Media USA Inc. v. Polyvore, Inc., 922 F.3d 42, 49 (2d Cir. 2019) (per
curiam) (“[W]e have rearmed post-Aereo . . . that ‘[v]olitional conduct is an important
element of direct liability.’” (quoting EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844
F.3d 79, 96 (2d Cir. 2016))); Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 667 (9th Cir.
2017) (explaining that one element of a direct infringement claim is volitional conduct).
75. See, e.g., Moore, Act and Crime, supra note 11 (canvassing and assessing dier-
ent philosophical conceptions of volition); Robert Audi, Volition, Intention, and
Responsibility, 142 U. Pa. L. Rev. 1675, 1680 (1994) (“Moore sees conflict as a pervasive
element in our desire and belief systems. Action cannot occur without resolution of such
conflicts; volition here plays the role of reconciler, or, at least, of referee.”).
76. See, e.g., Restatement (Second) of Torts § 2 cmt. a (Am. Law Inst. 1965) (“There
cannot be an act without volition. Therefore, a contraction of a person’s muscles which is
purely a reaction to some outside force, such as a knee jerk . . . , are not acts of that per-
son. . . . So too, movements of the body during sleep . . . are not acts.”).
77. Moore, Act and Crime, supra note 11, at 48.
78. Restatement (Second) of Torts § 2 cmt. a.
79. See Denicola, supra note 70, at 1265 (explaining that courts have found volition
when defendants made a choice to deploy systems that made infringement possible).
1902 COLUMBIA LAW REVIEW [Vol. 119:1887
conduct can be attributed to the provider rather than the technology
user alone.
80
This is to say that copyright law asks for volition at a specific
point on the causal chain: not simply the instance of providing copying
technology but the particular instance of copying.
81
This requirement is
plausibly motivated by the policy that it would be bad to hold technology
providers responsible for all infringements resulting from their tech-
nologies—including ones proximately caused by someone else’s ac-
tions—when these technologies are capable of value-adding, non-
infringing uses and are therefore not ones that the law seeks to dis-
incentivize entirely. For copyright, such technology providers thus must
have volitionally “committed” the infringing action themselves, perhaps
with opportunity to pause, evaluate, and then choose whether to proceed
with the particular infringing action, in order to be held responsible for
it.
82
All in all, given that the legal attention to machine operations has
been relatively extensive in the context of copyright’s volitional act re-
quirement, it provides a good test bed for exploring machine mental
states more broadly across the law. For in copyright law, many courts have
treated liability for human and mechanical, or automated, acts of copy-
ing dichotomously: Humans always have volition, even when they are
copying subconsciously, whereas machines can—and, to some courts,
always—lack volition, even when carrying out acts of copying for which
they are centrally designed.
83
Indeed, the particularly strong language of
80. See id. at 1272 (describing a hypothetical in which a customer uses a provider’s
machine to reproduce a copyrighted work to demonstrate that “[t]he volition require-
ment . . . defines the connection between the owner of a copying system and the copied
work that is sucient to justify attributing the copying of that work to the owner”).
81. An alternative way of describing copyright’s volitional act requirement is that it
requires that the actions of the technology provider be the proximate cause of the produc-
tion of the copy for the technology provider to be liable for infringement. See, e.g., BWP
Media USA Inc. v. Polyvore, Inc., 922 F.3d 42, 61–67 (2d Cir. 2019) (Newman, J.,
concurring in the result) (“Infringement is a tort . . . . ‘Volition’ . . . is best understood to
mean a concept essentially reflecting tort law causation. . . . ‘[C]ausation,’ in the context
of copyright infringement, is tort law ‘proximate cause,’ rather than ‘but for’ causation.”).
Note that this interpretation of the volitional act requirement is ultimately equivalent to
the interpretation we favor according to which volitions are the mental states causing ac-
tions, for it is asking whether the proximate cause of infringement is the action of the
technology provider. Furthermore, what determines whether something counts as the
technology provider’s actions (rather than someone else’s) is whether it is the result of the
technology provider’s (or its machine’s) volitional mental state (which causes actions
rather than mere movements).
82. See, e.g., Moore, Act and Crime, supra note 11, at 111–65.
83. Cf. James Grimmelmann, Copyright for Literate Robots, 101 Iowa L. Rev. 657,
657 (2016) (“Almost by accident, copyright law has concluded that it is for humans only:
reading performed by computers doesn’t count as infringement. Conceptually, this makes
sense: Copyright’s ideal of romantic readership involves humans writing for other hu-
mans.”). Professor Matthew Sag has observed that whether machines or their owners are
liable for copyright infringement ought to turn on whether the machines are copying
2019] MINDS, MACHINES, AND THE LAW 1903
Cartoon Network seems to entail that if we imagine an (inecient)
internet whose computers—servers and all—are each replaced with a
human given the task to copy received material and pass it on toward the
specified destination, then this imagined internet would count as having
volition under copyright law at each node, whereas the currently auto-
mated internet lacks it entirely.
84
This implication is notwithstanding the
fact that both variations of the internet—by stipulation—would be func-
tionally identical systems. But this thought experiment is reminiscent of
those deployed by philosophers in their eorts to understand the nature
of human minds and machines, to which we now turn.
III.
THE PHILOSOPHY OF MIND AND MACHINES
This Part surveys two of the most influential philosophical discus-
sions on the mind—namely, John Searle’s “Chinese Room” argument
and David Chalmers’s two concepts of mind—in order to explicate the
important conceptual distinction between “conscious” and “functional”
understandings of mental states. It then explains the implications of this
philosophical distinction for the question of whether any of the law’s
mental state requirements, such as copyright law’s volitional act require-
ment, can or should be satisfied by machines.
A. John Searle and the “Chinese Room” Argument
Philosophers of mind have long contemplated whether there is any
fundamental dierence between human and artificial minds. Perhaps the
most well-known challenge to the possibility of computers with truly hu-
man-like mental states is John Searle’s “Chinese Room” argument. This
argument has shaped much of the course of philosophical thinking on
these questions since its publication in 1980, spurring continuing debate
about the possibility of so-called “strong” AI—purely computational sys-
tems that possess conscious mental states like those of humans—versus
“weak” AI, which merely functionally simulates the human mind.
85
In par-
ticular, Searle asks us to consider the following thought experiment:
Suppose that I’m locked in a room and given a large batch of
Chinese writing. Suppose furthermore (as is indeed the case)
that I know no Chinese . . . . Now suppose further that after this
first batch of Chinese writing I am given a second batch of
works for expressive or nonexpressive uses. See Matthew Sag, Copyright and Copy-Reliant
Technology, 103 Nw. U. L. Rev. 1607, 1624–44 (2009).
84. See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008)
(“In determining who actually ‘makes’ a copy, a significant dierence exists between mak-
ing a request to a human employee, who then volitionally operates the copying system to
make the copy, and issuing a command directly to a system, which automatically obeys
commands and engages in no volitional conduct.”).
85. See Paul M. Churchland & Patricia Smith Churchland, Could a Machine Think?,
Sci. Am., Jan. 1990, at 32, 32–34 (noting that “Searle’s paper provoked a lively reaction
from AI researchers, psychologists and philosophers alike”).
1904 COLUMBIA LAW REVIEW [Vol. 119:1887
Chinese script together with a set of rules for correlating the se-
cond batch with the first batch. The rules are in English, and I
understand these rules as well as any other native speaker of
English. They enable me to correlate one set of formal symbols
with another set of formal symbols, and all that “formal” means
here is that I can identify the symbols entirely by their
shapes. . . . Suppose also that after a while I get so good at
following the instructions for manipulating the Chinese sym-
bols . . . that from the external point of view—that is, from the
point of view of somebody outside the room in which I am
locked—my answers to the questions are absolutely indistin-
guishable from those of native Chinese speakers.
86
In other words, Searle asks us to imagine that he is performing
computational operations on the Chinese characters in accordance with
formal rules, thereby instantiating a computer program.
87
Although the
program that he is operating has the same input–output structure as a
human fluent in Chinese, such that it is computationally equivalent to a
Chinese speaker, Searle argues that he—and the program—nonetheless
lack the conscious experience of a Chinese speaker who genuinely under-
stands the language.
88
In other words, he explains, there is a funda-
mental dierence between what goes on in the Chinese Room and an
alternative scenario in which Searle responds to English inputs with out-
puts on the basis of formal rules.
89
In the case of English, Searle is not
solely functionally instantiating the English program but also consciously
understands.
90
In the Chinese Room, however, he merely simulates a con-
scious Chinese speaker.
91
Searle’s thought experiment challenged both the view that it is possi-
ble for there to be an artificial system with conscious mental states result-
ing from purely computational processes
92
and the view that human
86. John R. Searle, Minds, Brains, and Programs, 3 Behav. & Brain Sci. 417, 417–18
(1980). Note that Searle himself originally put forth the “Chinese Room” argument as a
challenge to the possibility of computation-based understanding rather than consciousness.
But some philosophers have subsequently interpreted the argument as actually challeng-
ing the possibility of an artificial computer experiencing understanding, which is ultimately
the question of artificial consciousness. See, e.g., David Chalmers, The Conscious Mind: In
Search of Fundamental Theory 322–23 (1996). For this Essay’s purposes, we follow these
philosophers’ interpretation of Searle’s argument. Nonetheless, we flag the alternative
interpretation and note that the choice of interpretation ultimately has no bearing on this
Essay’s thesis.
87. Searle, supra note 86, at 418.
88. Id.
89. Id.
90. Id.
91. Id.
92. As Searle explains,
Whatever else intentionality is, it is a biological phenomenon, and it is as
likely to be as causally dependent on the specific biochemistry of its ori-
gins as lactation, photosynthesis, or any other biological phenomena. No
one would suppose that we could produce milk and sugar by running a
2019] MINDS, MACHINES, AND THE LAW 1905
consciousness is itself simply the product of computation.
93
In other
words, Searle argued, because the functional processes of computation
cannot give rise to conscious mental states and because our human
minds clearly possess such mental states, it cannot be the case that our
human minds are solely instantiating a program.
94
This argument triggered decades of discussion, including a slew of
critical responses from philosophers, psychologists, and computer scien-
tists. Some of these challenges reject Searle’s conclusion about the
Chinese Room, saying it in fact does experience understanding of
Chinese, even if the person inside the room—who is only a part of the
computational system—does not.
95
Others have said that even if the
Chinese Room lacks such experience, this is only because it is running
the wrong kind of program; if it were instead running, say, a program
simulating all the intricacies of the human brain, then it would have the
experience of a Chinese speaker.
96
But Searle himself has responded to
these objections, even addressing many in his original paper;
97
and there
thus remains a rift between those who find the Chinese Room to be com-
pelling in showing that the human mind could not be a computer and
those who regard the argument as fundamentally mistaken.
B. David Chalmers and the Hard Problem of Consciousness
Regardless of whether Searle’s argument is successful, the con-
ceptual distinction between conscious and functional properties of men-
tal states—which is made particularly vivid by the Chinese Room argu-
ment—remains enormously important and is taken seriously by all such
philosophers. Pointedly, even human mental states can be understood in
computer simulation of the formal sequences in lactation and photo-
synthesis, but where the mind is concerned many people are willing to
believe in such a miracle because of a deep and abiding dualism . . . .
Id. at 424.
93. Id. (“Whatever it is that the brain does to produce intentionality, it cannot consist
in instantiating a program since no program, by itself, is sucient for intentionality.”).
94. Id.
95. For example, Daniel Dennett posits that
Searle, laboring in the Chinese Room, does not understand Chinese, but
he is not alone in the room. There is also the System, . . . and it is to that
self that we should attribute any understanding . . . .
This reply to Searle’s example is what he calls the systems reply. It
has been the standard reply of people in AI from the earliest outings of
his thought experiment.
Daniel C. Dennett, Consciousness Explained 439 (1991).
96. See, e.g., Chalmers, supra note 86, at 323–25 (arguing that at least a system with
the same functional organization or structure as a brain would mirror the “causal relations
between neurons” and therefore have the same conscious properties); Churchland &
Churchland, supra note 85, at 37 (arguing that a system mimicking a human brain might
be conscious).
97. Searle, supra note 86, at 419–22.
1906 COLUMBIA LAW REVIEW [Vol. 119:1887
terms of either conscious or functional properties. David Chalmers
famously made this point in The Conscious Mind, which articulated what
he called the “hard problem” of consciousness.
98
As Chalmers explains,
the term “conscious” might be understood as synonymous with “phe-
nomenal,” the idea being that if an entity is conscious, then there is
something that it is like to be that being.
99
To illustrate this concept, con-
sider the contrasting examples of a human and a thermometer. Although
a human and a thermometer both possess functional attributes that
enable them to detect heat, the human feels or experiences heat,
whereas the thermometer does not.
100
This is the dierence between be-
ings—such as humans—that have the capacity for such subjective experi-
ences and beings—such as thermometers—that do not: Only the former
are conscious beings.
In his book, Chalmers demonstrates that individual human mental
states can be analyzed either in terms of what he calls their psychological
properties—their functional role in producing behavior, or what they
do—or their phenomenal properties—their conscious quality, or how they
feel.
101
That is, according to Chalmers, the functional and the conscious
concepts of the mind are distinguishable, even with respect to the human
mind.
102
Consider, for instance, Chalmers’s example of the “pain” mental
state.
103
Pains have conscious aspects: There is something it is like to be
in pain (indeed, it is unpleasant).
104
But pains also have entirely func-
tional properties, which specify their structural roles in causal systems.
For example, a pain has the functional properties of typically being the
product of some damage to one’s body, leading to adverse reactions to
the stimulus such as saying “ow,” recoiling, and so forth.
105
Upon separat-
ing the two concepts of mind, Chalmers ultimately argues for the
conceivability of an entity that possesses human mental states understood
entirely in terms of their functional properties, but which nonetheless
lacks any conscious experience of those states.
106
As he explains, the Easy
Problem (despite being dicult in its own right) is the question of the
precise functional nature of mental states;
107
the Hard Problem is the
98. Chalmers, supra note 86, at xi–xii.
99. Id. at 285–86. See generally Thomas Nagel, What Is It Like To Be a Bat?, 83 Phil.
Rev. 435 (1974) (explicating the philosophical diculties surrounding the concept of
consciousness).
100. At least, we plausibly suspect that it does not. An alternative view is oered by
panpsychism, the idea that all objects possess conscious minds. See, e.g., Chalmers, supra
note 86, at 297–301.
101. Id. at 11.
102. Id. at 17.
103. Id.
104. Id.
105. Id.
106. Id. at 17–18.
107. Id. at xi–xii.
2019] MINDS, MACHINES, AND THE LAW 1907
question of why or how certain beings—such as humans—also have con-
scious experience.
108
This philosophical distinction between the conscious and functional
properties of the mind has important implications for the law and its gov-
ernance of machines. This is because, regardless of one’s views on
whether conscious AI is possible, most philosophers—including Searle—
agree that machines (like the Chinese Room) can in principle replicate
the functional properties of human minds.
109
Moreover, for each of the
law’s mental state requirements, it remains an open question whether the
law ultimately seeks to track the conscious or functional properties of the
states in question. Because the law has primarily been designed for hu-
man actors, for whom the conscious and the functional typically coin-
cide, this is a question we have principally been able to avoid until now.
But the increasing prevalence of ever-sophisticated machines requires us
to take it seriously. If the law is concerned only with functional proper-
ties, then these properties could very well be possessed by the states of a
nonhuman machine.
110
In other words, then, it is far from settled that all
the law’s mental state requirements should be satisfied only by conscious
minds. The remainder of this Essay challenges this assumption, analyzing
the case of the aforementioned volitional act requirement in copyright
law.
IV.
VOLITION AND AI: IS CONSCIOUSNESS RELEVANT?
This Part argues that the volition requirement in copyright law ulti-
mately does not seem interested in tracking conscious properties of the
human infringer but instead functional ones, which could in principle be
possessed by a machine.
The earlier analysis of the purpose of copyright’s volitional act re-
quirement
111
still leaves open the question of whether such “volition” at
the instance of infringement must be conscious rather than some func-
tional analogue, or whether such a purely functional state of a machine
can result in something that, at least for the law’s purposes, should be
regarded as a “willful action” on the part of the technology provider. In
108. Id. at 4–5.
109. See Searle, supra note 86, at 418 (granting that the Chinese Room is functionally
“indistinguishable . . . from native Chinese speakers”).
110. According to one school of artificial intelligence, human-like intelligence in ma-
chines can emerge only from machines that are embodied with features that are human-
like, such as the brain and eyes. See generally Rodney A. Brooks, Cambrian Intelligence:
The Early History of the New AI (1999) (exploring how behavior-based robots can act in
ways that appear intelligent); Andy Clark, Being There: Putting the Brain, Body, and
World Together Again (A Bradford Book reprint ed. 1998) (1997) (theorizing how the
brain is a controller for embodied activity, and deriving an action-oriented theory of the
mind). To the extent that this school is correct, artificial intelligence will appear relatively
human.
111. See supra section II.D.
1908 COLUMBIA LAW REVIEW [Vol. 119:1887
other words, given the law’s concerns and that a business’s human em-
ployees almost always count as “acting” on the part of the business for
the law’s purposes, is there a reason for thinking, as a categorical matter,
that the business’s nonconscious machines—no matter their functions—
never could? We think the answer is “no.”
Consider first the general question: When should any area of law re-
quire a conscious rather than so-called functional volition? One might
argue that a being should be held legally responsible for itself—or as a
conscious, autonomous agent—only if that being is genuinely conscious.
But this thesis would certainly need to be defended, for it would depend
on the purpose of liability in the particular legal domain. If the purpose
is entirely to produce the proper incentives—the dominant American
view of copyright
112
—then it is not clear why the actor being held respon-
sible must have consciousness, rather than simply the right functional
responses to such incentives. On the other hand, at least for some areas
of law, one might have the view that legal responsibility is meant to track
moral responsibility.
113
Such a theorist thus might argue that it is non-
sensical to hold a nonconscious being morally responsible for its be-
havior, as such a being is not a moral agent. Underlying this claim is the
premise that, for something to be a moral agent, it must have conscious
experience. But even this supposition requires substantiation and is un-
doubtedly up for debate.
114
For instance, imagine a machine with all the
functional properties of a human. Such a machine would thereby have
the capacity for something functionally equivalent to moral deliberation
and judgment, and for choosing an action on the basis of such judgment,
all despite lacking any conscious experience of this process. We might
thus wonder why these functional capacities are not themselves sucient
for moral agency, or why their conscious quality (or lack thereof) would
be relevant to the question at all.
In any event, even if one embraces the view that a being must be
conscious for it to be held legally responsible for itself, this ultimately
does not pose a challenge for the suggestion—say, in the context of copy-
right law—that the mere functionality of a technology provider’s ma-
chine could suce for holding that provider responsible. This is because
holding a human or business entity responsible for its machine (or,
112. See supra text accompanying notes 30–37. See generally William M. Landes &
Richard A. Posner, The Economic Structure of Intellectual Property Law (2003) (articulat-
ing and defending an economic understanding of the aims of intellectual property law).
113. See, e.g., Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals,
and Metaphysics 4 (2009) (“[C]riminal and tort liability must track moral responsibility,
because justice is achieved only if the morally responsible are held liable to punishment or
tort damages.”).
114. See, e.g., S. Matthew Liao, The Basis of Human Moral Status, 7 J. Moral Phil. 159,
169 (2010) (arguing that the basis of human moral status is not the conscious properties
of human beings but rather the fact that human beings possess the genetic basis for moral
agency, and that nonhuman beings could also possess moral status).
2019] MINDS, MACHINES, AND THE LAW 1909
indeed, its employee) does not seem to amount to treating said machine
(or employee) as a conscious, autonomous agent; rather, it amounts to
treating the human or business entity as responsible for the machine. In
other words, whether or not machines themselves must have conscious
mental states in order to be held responsible for their own so-called be-
havior, the question of whether a business entity can be held responsible
for its machines—that is, whether these machines can be regarded as
“acting” on said corporation’s behalf—does not seem like it should turn
on whether the machine in question is conscious.
Moreover, the idea that copyright’s rules for infringement liability
are ultimately unconcerned with consciousness is further suggested by
the doctrine of subconscious copying, which has been widely criticized
but nonetheless firmly remains a part of copyright law.
115
Recall that, un-
der existing law, a human who subconsciously copies the work of an-
other—that is, without any awareness that he or she is doing so—is still
liable for copyright infringement.
116
Of course, the term “subconscious”
as used in this doctrine is importantly dierent from the concept of
phenomenal consciousness discussed earlier, for “subconscious” in the
doctrine refers to the absence of awareness that an act of copying—
rather than original creation—has occurred, whereas “unconscious” in
the phenomenal sense refers to the absence of any phenomenal qualities
whatsoever. But nonetheless, if copyright does not care about a potential
infringer’s awareness of their infringement, the question arises: Why
think that it cares about the presence of any conscious awareness or ex-
perience whatsoever, even awareness of action? It is hard to see a reason to
think it would. Indeed, when we imagine the case of a human employee
operating a technology provider’s copy machine—one whose mental
states, we have seen, would always satisfy copyright’s volition re-
quirement—it seems plausible that this requirement might ultimately be
interested in tracking what action the employee does and the function of
their mind in facilitating this action, rather than their phenomenology
while doing it.
V.
A FUNCTIONAL UNDERSTANDING OF MACHINE VOLITION
The preceding discussion suggests that copyright’s volition require-
ment may not demand consciousness and may instead be more con-
cerned with functionality. The doctrinal upshot is that so-called
“functional volition”—or functional properties that capture what the law
115. See, e.g., Olufunmilayo B. Arewa, The Freedom to Copy: Copyright, Creation,
and Context, 41 U.C. Davis L. Rev. 477, 531–39 (2007); Jessica Litman, Copyright as Myth,
53 U. Pitt. L. Rev. 235, 240 (1991); Wendy J. Gordon, Toward a Jurisprudence of Benefits:
The Norms of Copyright and the Problem of Private Censorship, 57 U. Chi. L. Rev. 1009,
1029–31 (1990) (book review); Carissa L. Alden, Note, A Proposal to Replace the
Subconscious Copying Doctrine, 29 Cardozo L. Rev. 1729, 1743–52 (2008).
116. Supra text accompanying notes 38–40.
1910 COLUMBIA LAW REVIEW [Vol. 119:1887
is ultimately interested in tracking here—may suce for copyright, such
that the operation of a machine could give rise to direct liability for the
technology provider, rather than solely for the technology user. This up-
shot has undoubted practical significance: It makes a substantial
dierence to copyright owners who would otherwise be limited to
attempting to hold only individual users directly liable, and it prevents
technology providers from avoiding direct liability simply by replacing
human employees with copy-making machines. But this framework raises
the question of which functional properties the volitional act require-
ment might seek and what a machine would have to look like to possess
them.
Consider the human reproducing copies of another’s copyrighted
work, whom copyright law says always possesses the requisite volition for
infringement liability. Indeed, consider the human employee making
copies of a protected work. Principal–agent liability would readily confer
liability on the employer without a doubt as to the employee’s volition.
117
Although such humans have the full range of the functional properties
of a human mind, in which of these properties or capacities is the law
ultimately interested in findings of infringement? Plausibly, it is not all of
them, because the hypothetical copy-making humans do not use this full
range of capacities. Instead, perhaps it is simply the humans’ capacity to
evaluate whether what they have been asked to copy is likely to be
material within the realm of copyright subject matter—putting aside for
the moment more complicated determinations such as the fair use de-
fense to infringement, which is addressed shortly
118
—and to decline to
make the copy on the basis of this determination. This functional capac-
ity would align coherently with copyright law’s stated aim to dis-
incentivize third parties from copying protected materials in order to
preserve the corresponding incentive that copyright oers to authors to
create.
119
And more broadly, it would seem to comport with the volitional
act requirement’s general purpose of ensuring that the actor has had an
opportunity to pause to evaluate whether to proceed in acting—and to
decline to perform the action if she so chooses on the basis of this eval-
uation—before being held responsible for the action.
120
This functional capacity seems relatively basic. Although it is not pos-
sessed by, say, a rudimentary copy machine—which is “compelled” to
make copies upon the pressing of a button and therefore has no
“choice” regardless of what is being copied—a more sophisticated com-
puter could plausibly be designed to “choose” whether to make a copy,
despite lacking the full range of human functional properties. In other
words, such a computer—despite being functionally subhuman—would
117. See infra text accompanying notes 128–132 (summarizing agency law).
118. Infra text accompanying notes 123–124.
119. See supra text accompanying notes 30–33.
120. See supra section II.D.
2019] MINDS, MACHINES, AND THE LAW 1911
be equivalent in all the ways copyright law cares about to a human
operating a copy machine, who we already know is always “volitional” for
purposes of copyright infringement.
121
For instance, bots fetching songs
and software generating new art based on learning from existing artwork
could readily possess volition in this sense of the word.
122
On the other hand, perhaps the volitional act requirement seeks to
track a more sophisticated functionality, such as the capacity to deter-
mine whether an instance of copying is likely to be fair use and choose to
act on this determination. As Professor Dan Burk suggests, it is dicult—
if not impossible—to devise algorithms that appropriately decide ques-
tions of fair use: “[T]he cost structure of algorithmic content policing
has created a largely impersonal process, in which the context-specific
factors that should be taken into account in fair use analysis are absent
and go unconsidered.”
123
In particular, Burk worries about the “human
judgment” that must be baked into these systems ex ante or in evaluating
machines’ outputs ex post, such as a model of the markets for copy-
righted works to assess the eect of a use on the market for a copyrighted
work and the significance of the part of the work used.
124
Thus, if
copyright law is interested in tracking the functional capacity to make
plausible fair use determinations, then it seems that a functionally vo-
litional machine remains far o.
Ultimately, this Essay does not aim to settle the question of the right
functionality in which copyright law ought to be interested. Instead, it
hopes to show that this is the type of question scholars and policymakers
need to be asking, rather than simply assuming that machines can never
be volitional as a matter of law.
Moreover, it must be emphasized that this conclusion is not merely
one of philosophical interest. Rather, whether and when machines can
possess the requisite volition to infringe copyright has great practical im-
port. The precise contours of the volitional act requirement have impli-
cations for who is and is not directly accountable for the copying of pro-
tected material. For copyright law to accomplish its goals of encouraging
the creation and dissemination of expressive works, it must provide
121. Supra notes 64–68 and accompanying text.
122. Supra text accompanying notes 19–21.
123. Dan L. Burk, Algorithmic Fair Use, 86 U. Chi. L. Rev. 283, 290 (2019) (emphasis
omitted).
124. Id. at 296. Similarly dicult, as Sonia Katyal and Jason Schultz point out, are
questions of which parts of a work are protectable as original and whether the author has
expressly or implicitly licensed uses of the work. See Sonia K. Katyal & Jason M. Schultz,
The Unending Search for the Optimal Infringement Filter, 112 Colum. L. Rev. Sidebar 83, 96–
101 (2012), https://columbialawreview.org/wp-content/uploads/2016/05/Katyal-Schultz.pdf
[https://perma.cc/V4EW-MNUT]. Other scholars are more supportive of the possibility of
algorithmic copyright enforcement so long as the machine providers are transparent
about and accountable for their substantive determinations. See Maayan Perel & Niva
Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, 19 Stan. Tech. L. Rev.
473, 477–78 (2016).
1912 COLUMBIA LAW REVIEW [Vol. 119:1887
sucient incentive to creators with copyright’s exclusive rights and con-
comitant disincentive to third parties from infringing those rights by
holding them liable for infringement.
125
Holding the providers of ma-
chines that act with the requisite volition directly liable for infringement
thus plays an important role in doing just that. Indeed, even if there is
also a technology user—a so-called customer—to hold accountable for
infringing uses of a technology, this should not rule out holding quali-
fying technology providers liable for infringement as well. And given that
technology users in these cases might be judgment proof while the tech-
nology provider frequently is not, the ability to hold the technology pro-
vider liable can have significant practical import. Moreover, because of its
intricate connection to copyright policy, an inquiry into machine volition
as a matter of direct liability will frequently be more pertinent and
straightforward than an investigation of secondary liability, in light of the
law’s relatively mystifying standards for the latter.
126
At this point, one might be concerned with the policy implications
of a conclusion that machines can have functional mental states or that
functionality is what matters for findings of copyright infringement. For
instance, does this overly discourage innovation of more sophisticated
technologies, ones which—unlike simple copy machines—possess func-
tional volition, to the extent that technology providers will attempt to
“design around” liability? Or should technology providers be required to
employ functionally volitional machines? Perhaps it would be sucient
to require machines to flag certain (or all) material for review by a
human—such as a lawyer—before copying it, and thereby introduce
human volition at the instance of copying. Such a design would give the
machine the ability to pause and evaluate before proceeding to copy
protected material. But it might also incapacitate machines from
automating many of the tasks we have come to expect from them,
precisely as the Netcom court worried.
127
Thus, the reader might wonder whether the forgoing discussion on
human and machine volition should move us to reconsider the volitional
act requirement itself. For instance, we might ask whether (on the one
hand) a technology provider’s volition in providing copying technology
should be sufficient for liability rather than requiring volition at the
125. See supra text accompanying notes 30–37.
126. See Mark Bartholomew & John Tehranian, The Secret Life of Legal Doctrine:
The Divergent Evolution of Secondary Liability in Trademark and Copyright Law, 21
Berkeley Tech. L.J. 1363, 1409–10 (2006) (“The diculty of pursuing direct infringers has
never served as a doctrinal basis for . . . secondary liability. Such reasoning undermines the
stability of legal guidelines, rendering them unreliable . . . and erod[ing] the principled
bases for secondary liability.”); Lital Helman, Pull Too Hard and the Rope May Break: On
the Secondary Liability of Technology Providers for Copyright Infringement, 19 Tex.
Intell. Prop. L.J. 111, 123 (2010) (stating that Supreme Court case law on secondary lia-
bility for copyright infringement “may have actually sowed the seeds of confusion reflected
in the area . . . to this day”).
127. Supra text accompanying note 60–61.
2019] MINDS, MACHINES, AND THE LAW 1913
instance of copying itself, or whether (on the other hand) the doctrine
of subconscious copying should be rejected. And, indeed, such skeptical
musings are ones in which we ourselves are inclined to engage. But note
that they bear on the question of whether the volitional act requirement
is a good thing and not whether—given what it seems to be trying to
do—machines of any kind would and should ever satisfy it. Questions of
the latter sort, we have demonstrated, cannot be handled so indelicately
as some courts seem to think, for the law—for better or for worse—very
well might here be interested in tracking only functional properties.
Thus, as we enter a world in which users ask bots to find particular songs
online and software gathers existing artworks to learn to create new art, it
is increasingly important that we address such questions with due care.
Moreover, because copyright law’s volitional act requirement has served
only as a case study, note that—regardless of what should or does become
of this particular requirement—the challenge posed by the rest of the
law’s countless mental state requirements remains. The presented frame-
work oers a path forward in analyzing how to adapt these requirements
to a technologically evolving world.
The preceding analysis has pushed back on the assumption that
mental state requirements can be satisfied only by human minds, instead
asking both whether the particular requirement in question is ultimately
about conscious or functional properties, and what a machine would
have to look like to possess the functional properties of interest. But this
analysis has focused in detail on one example, considering the apparent
aims of a specific mental state requirement in copyright law. The next
Part thus moves to generalize a theory of machines’ mental states.
VI.
TOWARD A GENERAL THEORY
As noted at the outset, despite the analytical focus until now on
copyright law, the point to be gleaned from the present Essay is ulti-
mately general: In the case of each implicit or explicit mental state re-
quirement in the law, legal scholars and policymakers will need to engage
in a similar analysis while attending to the unique interests and values at
stake with regard to that law, in order to determine whether conscious-
ness or mere functionality is what matters.
Of course, even if machines can have functional mental states, they
do not have money, rights, or status as legal persons (at least, for the time
being). Thus, the consequence of our analysis is that—to the extent that
machines might be understood as having mental states for the law’s pur-
poses—machines might cogently be understood as agents of the business
principal that creates or deploys them, performing actions for which that
principal can be held directly responsible.
128
As one scholar puts it, an
128. See Anat Lior, The Artificial Intelligence Respondeat Superior Analogy 54 (un-
published manuscript) (on file with the Columbia Law Review). By contrast, if machines
cannot be understood to possess mental states in the view of the law, it is likely that they
1914 COLUMBIA LAW REVIEW [Vol. 119:1887
agent “functions as the principal’s representative, as an extension of the
principal, while retaining the agent’s own separate legal personality.”
129
Agency, as per the most recent Restatement of the Law on the topic, is
“the fiduciary relationship that arises when one person (a ‘principal’)
manifests assent to another person (an ‘agent’) that the agent shall act
on the principal’s behalf and subject to the principal’s control, and the
agent manifests assent or otherwise consents so to act.”
130
An agent can
act with actual or apparent authority from the principal vis-à-vis third par-
ties.
131
When an agent does so, pursuant to principles of respondeat
superior, the principal can be legally liable for the agent’s actions.
132
Thus, by suggesting the possibility of machines with legally required men-
tal states, we are ultimately suggesting that there are contexts in which
such machines are (functionally) agents in all the ways that matter. For
that reason, just as a business would be liable for the conduct of its hu-
man agents, a business that creates and deploys these machines should
be liable as principals for the conduct of these machines.
133
The possibil-
ity of technology providers being directly liable for infringement by their
functionally volitional copying technologies is only one example of how
this might manifest.
would instead be perceived as instrumentalities of the businesses or individuals that create
and deploy them. Cf. id. at 12 (discussing the possible analogy of artificially intelligent
machines to property). The Restatement (Third) of Agency takes the position that
computers circa 2006 cannot be agents on the ground that “[t]o be capable of acting
as . . . an agent, it is necessary to be a person, which in this respect requires capacity to be
the holder of legal rights and the object of legal duties.” Restatement (Third) of Agency
§ 1.04, cmt. e (Am. Law Inst. 2006). According to the Restatement, “a computer program
is not capable of acting as . . . an agent . . . . At present, computer programs are instru-
mentalities of the persons who use them.” Id. In light of this Essay’s analysis and the trajec-
tory of artificial intelligence technology, this position may warrant reconsideration.
129. Deborah A. DeMott, The Contours and Composition of Agency Doctrine: Perspectives
from History and Theory on Inherent Agency Power, 2014 U. Ill. L. Rev. 1813, 1816.
130. Restatement (Third) of Agency § 1.01.
131. See id. §§ 2.01–2.02 (actual authority); id. § 2.03 (apparent authority).
132. Id. § 2.04 (respondeat superior); id. § 2.06 (liability of undisclosed principal); id.
§§ 7.03–7.08 (principal’s liability for an agent’s actions). According to agency principles,
“[a]n agent is [also] subject to liability to a third party harmed by the agent’s tortious
conduct . . . although the actor acts as an agent or an employee, with actual or apparent
authority, or within the scope of employment.” Id. § 7.01. What this might mean with re-
gard to artificially intelligent machines is beyond the scope of this Essay.
133. Note that a complete defense of the idea that machines can and should some-
times be regarded as the agents of humans or corporations would also require an expli-
cation of what mental states (or other requirements) humans need to possess to count as a
machine’s principal. We set aside consideration of this question for future work. An im-
portant point to note, however, is that requirements for technology providers to be re-
garded as the principals of their functionally volitional machines are plausibly dierent
from, and perhaps weaker than, what existing courts require of technology providers un-
der their present (and, in our view, mistaken) understanding of the volitional act require-
ment.
2019] MINDS, MACHINES, AND THE LAW 1915
To move toward that more general enquiry, one might start by con-
sidering some preliminary thoughts on two very dierent mental state
requirements: namely, volitional act requirements in criminal law rather
than copyright
134
and copyright’s requirements for authorship rather
than infringement.
135
One could coherently embrace the view that, alt-
hough functionality is all that matters for volition in the context of copy-
right infringement, consciousness matters in both of these alternative
legal contexts. For instance, one might argue that the punitive aims of
criminal law ultimately require that those engaging in criminal conduct
have a conscious experience of the actions in which they have en-
gaged.
136
One might also argue that, because status as an author under
copyright involves possessing rights of ownership in one’s creative work,
it ultimately requires personhood,
137
something which—the argument
would go—requires possessing a conscious mind.
138
We neither defend
nor reject either such line of argument, as to do so would involve distinct
projects in their own right. Rather, we invoke these two additional con-
texts to illustrate the way such analyses might go and how they might dif-
fer from our primary example of copyright infringement, owing to the
distinct aims and considerations at play in each context.
At this point, one might wonder about the availability of a general
theory regarding when the law cares about conscious versus purely func-
tional properties of mental states such that this framework need not be
applied on a painstakingly case-by-case basis. Perhaps the search for such
a theory is precisely where this Essay should lead future work. Nonethe-
less, as a preliminary hypothesis—one reacting to, and consistent with,
the examples we have here discussed—it might be that the law is inter-
ested in conscious properties of mental states when it seeks to treat the
actor in question as a rightsholder (such as in copyright authorship) or
an autonomous and responsible agent (such as in criminal punishment).
But in contexts in which the law is seeking simply to protect the rights or
134. See Moore, Act and Crime, supra note 11, at 44–46.
135. See, e.g., Shyamkrishna Balganesh, Causing Copyright, 117 Colum. L. Rev. 1, 11–
47 (2017) [hereinafter Balganesh, Causing Copyright] (defending and analyzing the idea
of “authorial causation” as a requirement for copyrightability).
136. See Samuel W. Buell & Lisa Kern Grin, On the Mental State of Consciousness
of Wrongdoing, 75 Law & Contemp. Probs., no. 2, 2012, at 133, 139–44 (exploring how
blameworthiness can justify a requirement of conscious awareness of wrongdoing); cf.
Shapira-Ettinger, supra note 16, at 2578 (“A normative theory [of guilt in criminal law]
stands in contrast to the dominant psychological theory of guilt . . . prevailing . . . in legal
systems today. The focus of the psychological approach to guilt is on . . . the internal state
of mind that reflects the kind of consciousness with which one acts.”).
137. Balganesh, Causing Copyright, supra note 135, at 27 (“Given that authorship was
invariably tied to ownership and the assertion of legal rights, it made little sense to speak
of nonhuman authorship.”).
138. See generally Christopher Buccafusco, A Theory of Copyright Authorship, 102
Va. L. Rev. 1229 (2016) (defending a theory of authorship that requires intent: namely, the
intention to produce mental eects in an audience).
1916 COLUMBIA LAW REVIEW [Vol. 119:1887
interests of others from the actor (such as copyright infringement), func-
tionality might be all that matters.
139
A thorough exploration or defense
of this preliminary hypothesis is reserved for future work. But we hope
this Essay has impressed the need to engage in such explorations and to
wrestle with the fundamental questions surrounding the law’s aims, in
order to adapt the law to an increasingly machine-filled world.
C
ONCLUSION
In sum, it is a mistake to assume that machines can or should never
satisfy implicit or explicit mental state requirements, entirely by virtue of
the fact that they are machines. The law is not always or necessarily con-
cerned with the existence of conscious experience or even with the full
range of human-level functionalities. Instead, it will always be a sub-
stantive question what the law’s various mental state requirements are
aiming to track, one which depends on the interests and values at stake
in the particular legal domain. It follows from this that, in adapting the
law to a world with increasingly sophisticated technologies replacing the
actions of humans, the challenge for the law is not that mental state re-
quirements exist. Rather, it is that scholars and policymakers must start
asking the normative questions of what such requirements are designed
to achieve and therefore what relevant mental states must be.
139. Thanks to Erick Sam for suggesting this hypothesis in conversation.
