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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 become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or — at least — something sufficiently 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 liability 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.


Intellectual Property Law | Law | Science and Technology Law


This article originally appeared in 119 Colum. L. Rev. 1887 (2019). Reprinted by permission.