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Evolutionary Theory, Copyright Jurisprudence and Innovation: Examining the Path of Secondary Liability Doctrine in the U.S. during the 2000s

This research aims to demonstrate how evolutionary concepts and methods may be used to identify aspects of the judicial decision-making process which determined the path of secondary liability jurisprudence in the domain of copyright during the 2000s in the U.S.

Letzte Änderung: 30.08.17

This research is based upon two hypotheses: (1) the development of secondary liability doctrine in copyright law had a chilling effect on innovation in the field of digital network distribution technologies during the 2000s, and (2) it is possible to discern the mechanisms inherent to the judicial decision-making process responsible for this outcome. An evolutionary theoretical framework is implemented to test these presumptions.

In order to provide a robust foundation for the application of evolutionary theory to legal phenomena, a detailed account of the development of evolutionary theory in the domain of biological science is given. Within the field of biological science, this historiography is bookended by the naturalistic theorizing before Darwin and current developments in the field of Human Evolutionary Biology. Given its importance, central emphasis is placed upon the theory of evolution by natural selection, and its component parts, as first developed by Charles Darwin.

In a second step, attention turns to the application of evolutionary theory within social scientific study. In particular, cultural and economic research incorporating evolutionary concepts and methods are examined. Once this bridge from the biological to the social has been constructed, the focus of the research becomes the incorporation of evolutionary theory into legal science.

Specifically, an analysis of secondary liability case law in the domain of copyright is conducted. Thereafter, the empirical findings of the examination are interpreted in light of the theoretical principles established in the previous sections.



Seth Ericsson


Prof. Dr. Josef Drexl


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