© Springer-Verlag Berlin Heidelberg 2015Roberto Caso and Federica Giovanella (eds.)Balancing Copyright Law in the Digital Age10.1007/978-3-662-44648-5_3
Effects of Culture on Judicial Decisions: Personal Data Protection vs. Copyright Enforcement
Faculty of Law, University of Trento, Trento, Italy
2.1 Italian Cases
2.2 US Cases
2.3 Canadian Cases
This work is based on a number of selected lawsuits, where copyright holders tried to enforce their rights against Internet users suspected of illegal file sharing. In so doing, copyright enforcement collided with users’ information privacy.
In fact, in the analyzed controversies, users were normally only partially identifiable through their pseudonymous or IP address. In order to obtain their real identities, copyright holders required the intervention of Internet service providers (ISPs) supplying users with Internet connection. ISPs have sometimes refused to collaborate, forcing copyright holders to sue them with the aim of obtaining a judicial provision ordering the disclosure of users’ data. Here arose an animated conflict between users’ data protection and copyright holders’ enforceable rights.
Employing a comparative and interdisciplinary (sociocultural) approach, my case study tries to understand the way judges solve the mentioned conflict. The comparison involves the European system (with particular regard to Italy) and the North American ones (US and Canada).
My hypothesis is that, in addition to the features of each country as considered through a “traditional” comparative approach, judges may be influenced in their decisions by culture. In fact, judges do not live a secluded life but operate within a society. Therefore, it is at least plausible, if not necessary, that their decisions reflect the values of that society.
The paper has two goals, which are strictly intertwined one with the other.
The primary goal is to analyze different indicators relating to both the case studies and the considered systems, in order to understand if the decisions were the by-products of different policy conceptions and cultural perceptions of the two conflicting rights in the three mentioned systems.
The secondary goal refers to the methodology applied. From this point of view, another aim of the paper is to develop, in the wake of existing literature, an interpretative approach to examine judges’ decisions from a sociocultural perspective.
Both aims will help in shedding some light on the relationship between judges and society.
This paper summarizes an ongoing research, which I began during my Ph.D. I would like to thank all those who have given fruitful comments on this work and on the main research of which this paper is part. I am especially grateful to Prof. Roberto Caso for encouraging me to study this subject, for our reflections on the issue, as well as for the opportunity to publicly discuss my thesis. Usual disclaimer applies.
The existence of conflicting rights is the ontological characteristic of law. Law itself elaborates the necessary criteria to decree which of the conflicting rights should prevail. When there is no legal predetermination, judges are in charge of determining the prevalence of one right over the other, applying a balancing judgment. This judgment can be particularly thorny when there are fundamental rights at stake, which gain the highest rank among all other rights (at least at first sight).1
This work represents a first analysis of the mentioned balancing, with the aim of understanding if, besides the method of balancing applied, judges can be influenced by cultural factors relating to the perception of the conflicting rights. Moreover, the work investigates whether policies—meant as main lines of intervention followed by the legislator for the protection of a given right—could affect these judicial decisions as well.
In order to answer these questions, the research is based on some case studies. These have been chosen among decisions relating to a scenario that has been highly modified by the advent of digital technology. A paradigmatic case of conflict between fundamental rights is in fact represented by the infringement of copyrighted works on the Internet. The analyzed cases concern the enforcement of copyright against illegal file sharing made through peer-to-peer platforms, where every user is at the same time both server and client and can upload and download files through the network.
Music (and later, movie) industries have been trying to stop this phenomenon for many years and in different ways.2 In the controversies here analyzed, the target of the music industry’s legal action was users. In the latter controversies, in order to sue final users, copyright holders needed to follow a particular path. In fact, Internet users are usually only partially identifiable, meaning that only their pseudonymous or IP addresses are known.3 To match these data to users’ real identities, copyright holders required the intervention of Internet service providers (ISPs) supplying users with Internet connection. ISPs sometimes refused to collaborate, forcing copyright holders to ask for judicial provisions ordering the disclosure of users’ data.
In so doing, copyright holders sought to obtain data that are users’ personal data.4 Judges found themselves confronting the dilemma of making copyright prevail—and therefore ordering the disclosure of users’ identities—or making informational privacy prevail5—frustrating copyright holders’ expectations.
These lawsuits took place in different countries, but I shall here consider and compare only some cases that took place in the USA, Canada, and Italy. I have chosen to analyze the USA and EU, of which Italy is clearly part, since they represent two important and often very different legal systems. Canada represents a middle ground between these two “blocks,” given that it is inevitably influenced both by the bordering US and by the older dominance of EU.
With this work, I would like to shed some light on the possible influence that national culture plays on judges. More precisely, this paper analyzes if in the illustrated conflict, besides the method of balancing applied, judges can be affected by cultural factors relating to the perception of the battling rights. Furthermore, the work investigates whether policies—meant as main lines of intervention of the legislator for the protection of a given right—could affect judicial decisions as well. I therefore apply a sociocultural approach, in which the concept of “legal culture” becomes central.
I am totally aware that this study presents some limits, which will emerge in the following pages. In order to simplify my research, I was forced to leave in the background many different variables, isolating other ones. It would otherwise have been almost impossible to manage the entire range of variables, and I would not have been able to reach the results I was aiming for. This work is not intended to be an all-embracing explanation of the phenomenon or of all the variables existing in the chosen cases. It can nevertheless be one of the concurring explanations, bearing clearly in mind nonetheless the undoubtable differences among the considered systems.6
The paper starts with a brief analysis of the case studies (Sect. 2). Then it illustrates legislation on file sharing (Sect. 3) and personal data protection (Sect. 4) in the three systems. Finally, some conclusions are drawn, considering the possibility of a cultural and “political” influence on judicial decisions relating to the balancing of conflicting rights (Sect. 5).7
2 Solutions Applied by Judges: Case Studies
Despite taking place in different countries, or even continents, the cases considered are very similar to one another. In each of them, copyright holders relied on the collaboration of companies specializing in the acquisition of online information. These companies detected the existence of an illicit exchange of music files through peer-to-peer networks and collected the IP addresses of users who allegedly participated in this exchange.8
Through the acquired IP addresses, it was potentially possible for record companies to identify the names of the users/alleged infringers. To achieve this aim, the collaboration of ISPs was needed. Since some of them did not collaborate, record companies sued ISPs or requested their intervention as third parties, asking for injunctions that would oblige ISPs to disclose the data of those customers suspected of illegal file sharing. The idea behind recording companies’ strategy was to later sue final users directly, in the hope of reaching an early settlement, at the same time creating a deterrent effect on other users.
In these lawsuits between the music industry and ISPs, the latter denied their collaboration, also arguing that their customers’ privacy had to be protected.
Judges reacted differently in the three considered systems.
2.1 Italian Cases
The Italian case considered took place between 2006 and 2008 and involved the recording company “Peppermint Jam Records GmBH” and the ISP “Wind Telecomunicazioni Spa.”9
Peppermint is a German recording company that holds the rights to musical works of different artists. With the collaboration of a Swiss company (called Logistep), Peppermint ascertained that musical works of which it owned the rights were illegally shared through peer-to-peer networks. Logistep traced users sharing those musical works and registered their IP addresses.
Peppermint then sued Wind on the basis of a specific intellectual property enforcement tool (art. 156bis of Italian copyright statute, L. 22.4.1941, n. 633), which was implemented in Italy due to the European Directive called “IPR Enforcement.”10 According to this provision, if a party gives serious elements from which it can be inferred that its claims are sound, that party can ask the judge to order the counterparty to give information for the identification of the individuals involved in the production and distribution of the goods or services that constitute a violation of the copyright. Through art. 156bis, Peppermint asked the Tribunal of Rome to order Wind to disclose its customers’ identification data associated with the IP numbers suspected of illegal file sharing collected by Logistep.
The illegality of file sharing is linked to arts. 171, 171ter, and 171quater of the Italian law on copyright.11 Art. 171, letter a-bis) imposes a fine from 50 to 2,050 euros for making a copyrighted work completely or partially available to the public, by uploading the work on a telecommunication network, without having the right to do so, regardless of the aim and of the method used.12
Art. 171ter, co. 2, letter a-bis) punishes the infringer with imprisonment from 1 to 4 years and with a fine between 2,500 and 15,500 euros. The punishable conduct consists in communicating a complete or partial copyrighted work to the public, through its introduction into telecommunication networks, using whichever kind of connection. This conduct shall be made in violation of the right to communicate to the public (art. 16 of the Italian copyright law) and with profit-making aims.13
Lastly, art. 174bis prescribes that parallel to the criminal punishment, those who violate art. 171, co. 1, letter abis) are also subject to a fine.
The long controversy between Peppermint and Wind gave rise to more than one injunction.14 In the first ones, the Tribunal of Rome ordered the ISP to disclose users’ data.15 One of the injunctions stated that the collection of IP addresses made by Logistep was “reliable, acceptable and above all licit, given that a person who uses a file-sharing program shows, by this activity alone, the will to accept that her IP address can be known by all the other users using the same program.”16 This would have been a sort of noncodified exception to the principle of a data subject’s consent to art. 23 of the Italian “Codice in materia di protezione dei dati personali,” also called “Privacy Code” (d.lgs. 30.6.2003, n. 196).17
According to the Tribunal, another applicable exception was the one introduced by art. 24, co. 1, letter f) of the Code, which provides that consent is not required when data are necessary “to judicially enforce or defend a right.”18
The decision taken by the Tribunal of Rome was followed in other orders by the same Tribunal until 2007,19 when the scenario started to change. Let us take as an example the order of July 16, 2007.20
A very important difference between this decision and the previous ones is the presence of the Privacy Authority (so-called Garante per la protezione dei dati personali) in the controversy. In fact, although it had been notified by the Tribunal already in the first lawsuit, the Authority spontaneously intervened only in the lawsuit ending with the order of July 16, 2007. Its intervention in support of the protection of users’ personal information undoubtedly affected the decisions of the Tribunal of Rome.21
Indeed, the Authority observed that the collection of data made by Logistep had been done infringing arts. 37 and 13 of the Privacy Code. Art. 37, letter d) provides that the collection of data has to be communicated to the Authority when its purpose is to monitor electronic communication services. Art. 13 requires prior information to and specific consent by the data subject to whom the collected data refer. Furthermore, differently from what the Tribunal of Rome had stated, art. 24, co. 1, letter f) had to be interpreted as an exception applicable in the controversy and not to acts predestined to a possible subsequent trial.22
Another fundamental point stressed by the Authority is that users’ privacy and the confidentiality of their communications are fundamental values in the Italian legal system, protected by arts. 2 and 15 of the Constitution. Therefore, only other fundamental values of the same degree can constrict them. Moreover, such constriction can be determined only after an effective balancing judgment, which in the specific case the judge had not made.23
After these orders, some others with the same content followed.24
It is worth mentioning another (last) decision, taken on March 17, 2008, since it considered a judgment by the European Court of Justice.25 The case “Productores de Música de España (Promusicae) v. Telefónica de España SAU” is a European decision concerning a request for preliminary ruling by the Juzgado de lo Mercantil n. 5 of Madrid. Promusicae, a nonprofit organization acting on behalf of its associated musical authors, asked a Spanish ISP—Telefónica—some data to identify final users suspected of illegally sharing musical works, the rights to which belonged to Promusicae’s associates. The controversy was very close to the Italian ones here summarized. Based on Spanish legislation of European derivation, the Juzgado could not give prevalence to one of the conflicting rights and therefore requested the intervention of the Court of Justice. The question was whether EU law permitted member states to limit the duty of ISPs to retain and make available connection and traffic data for the purposes of criminal investigations or to safeguard public security and national defense, thereby excluding civil proceedings. The decision stated that European Directives do not obligate member states to provide a legal obligation to communicate personal data in order to ensure effective protection of copyright in civil proceedings in situations like those here described.26 The Court further stated that when transposing European directives, member states have to rely on an interpretation of European laws that allows a fair balance among the various fundamental rights protected by the Community legal order.
Moreover, in implementing the measures transposing the directives, authorities and courts must interpret their national law in a way consistent with those directives. In the meantime, they must make sure that they do not rely on an interpretation of the directives that would conflict with the mentioned fundamental rights or with other general principles of Community law, among which is the principle of proportionality.27
In its decision, the EJC referred to copyright as a fundamental right, since it is considered as a right of property, and consequently as a general principle of Community law. However, the Court itself stressed that the protection of privacy and of private life is a fundamental right as well.28 The decision faces the “need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect private life on one hand and the rights to protection of property […] on the other.”29 The Court, which considered the mechanisms to allow this reconcilement to be found in European Directives, clearly claimed that copyright has to be balanced against other rights.
From the wording of this decision, it can be clearly inferred that copyright is not an absolute right. The ECJ proclaimed that a fair balance needs to be struck between the numerous fundamental rights protected by Community law.30
2.2 US Cases
The US decisions on copyright enforcement against Internet users are numerous. In order to give a complete picture of the situation, I shall illustrate two controversies in which two different mechanisms were applied.
I shall first briefly sketch the regulation of file sharing.
In the US, file sharing of copyrighted material through peer-to-peer networks seems to be sanctioned by multiple provisions, none of which however explicitly refers to file sharing. Indeed, the 1978 Copyright Act has been frequently modified since its enactment31 as a response to the increasing need for copyright protection due to the diffusion of technological innovations. Many different bills have been proposed to punish file sharing, but no single one has become law yet.32 Despite the absence of a specific punitive provision, there are very few doubts on the illegality of file sharing of copyrighted materials. File sharing can be considered an act of copying, therefore infringing the author’s right of reproduction. Indeed, despite the existence of limitations and exceptions to copyright, under current interpretations, file sharing does not fit into them.33
The first case to be analyzed originated from the refusal of an ISP (Verizon) to comply with the subpoena requested by the Recording Industry Association of America (RIAA), the trade organization that represents recording industry distributors in the United States.34
Through a subpoena duces tecum, a court, upon request of a party, orders a third person to produce documents or other tangible forms of evidence35. In the US legal system, a special form of subpoena exists for the enforcement of copyright, provided by § 512(h)36, according to which “a copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with [17 USC § 512]”37.
The RIAA meant to use this tool to obtain users’ identities associable to the collected IP addresses suspected of illegal file sharing of musical contents.
The District Court for the District of Columbia stated that Verizon had to comply with the RIAA’s request. Verizon appealed this decision, and the Court of Appeal reversed it. Among the reasons for the appeal, Verizon considered the contrast between § 512(h) of the Copyright Act and the First Amendment of the Constitution, protecting freedom of expression and therefore also anonymity. The subpoena was quashed for other reasons, and more specifically because of a restrictive interpretation of the hypothesis in which the subpoena tool was applicable. Nevertheless, what has to be stressed is the exception mentioned, made by Verizon with regard to anonymity of users, which can be somehow considered a form of privacy. In its defense, Verizon argued that the DMCA subpoena violated users’ First Amendment rights by uncovering their anonymity, given that courts have recognized that the First Amendment also covers expression on the Internet38.
Verizon’s statements on anonymity can be considered a defense of privacy as well. Anonymity is in fact a tool to preserve or conceal someone’s privacy, and at the same time, the former can enjoy some protection as a component of the latter39: they can somehow be seen as complementary to one other.
Given the unsuccessful results obtained through the DMCA subpoena, the RIAA chose another typical trial tool: the so-called ex parte discovery. In this kind of process, one of the parties is not notified of the existence of the process itself; hence, it is not present or represented.
The RIAA started a number of lawsuits against “John Doe”40. An “ex parte” order would permit the RIAA to obtain “immediate discovery,” which is an authorization to issue a subpoena to the ISPs as third parties, requesting them to supply the information on their clients41.
As an example, let us take the decision Arista Records, LLC v. Does 1-16 42. Again, the ISP objected that the First Amendment was violated, even though the District Court held that sharing files through peer-to-peer technologies could not be considered an “expression” for the purposes of the First Amendment. Moreover, the Court observed that there was a scarce expectation of privacy43: users who share files through peer-to-peer networks accept that their personal data can be spread through the same networks44.
The most interesting part of the decision is the application of a specific test in order to understand which of the conflicting rights—meaning, privacy/copyright—should prevail45.
The factors considered are the following:
concrete showing of a prima facie claim of actionable harm,
specificity of the discovery request,
absence of alternative means to obtain the subpoenaed information,
central need for the subpoenaed information to advance the claim, and
the party’s expectation of privacy.
This test was followed in the majority of the decisions here illustrated and resulted, in most of the cases, in a victory for copyright enforcement.
As we will see, a similar test is applied also in the Canadian decisions, while it does not exist in the Italian context, even though, in the case of interpretation of art. 156bis as a precautionary measure, the requirements of fumus boni iuris and periculum in mora must be evaluated46.
2.3 Canadian Cases
There are very few Canadian decisions relating to the enforcement of file sharing against final users. The case here considered is BMG v. Does 47, the first and most important decision of this kind in the Canadian legal system. The case is a copy of the US ones, promoted by the Canadian Recording Industry Association (CRIA), the Canadian correspondent of the RIAA.
In Canadian copyright law, there is no tool such as the subpoena provided by §512(h) of the U.S.C. or art. 156bis of Italian law on copyright. Hence, CRIA used the tool of the John Doe processes since the beginning, following rules 233 and 238 of the Federal Court Rules. These rules, concerning the discovery phase, aim at revealing the existence of documents and at obtaining the subsequent showing of the same documents by people who are not part of the lawsuit.
In BMG v. Does, five different ISPs were involved: four of them refused to comply with the requests of plaintiffs, arguing that the privacy of users/clients had been violated. These arguments were based on the applicability to the case of the Personal Information Protection and Electronic Documents Act (PIPEDA) of 2001.
Unlike what happens in the US and in Italy, when the Canadian decisions were taken, there was no legislative provision from which one could infer with certainty that file-sharing activities were illegal. The CRIA argued that users infringed authors’ exclusive rights: Sections 18 and 27 of the Canadian Copyright Act protecting reproduction and distribution of copyrighted works48. Nevertheless, in this case, the Court stated that “downloading a song for personal use does not amount to infringement in the light of Section 80(1) of the Copyright Act” providing an exception to copyright for personal use49.
This interpretation, as well as the absence of specific provisions punishing file sharing, was an effect (also) of the late implementation of World Intellectual Property Organization Treaties by the Canadian government50. These international agreements introduced a new right for the copyright holder: the exclusive right to make available, which can be seen as a way to stop file sharing and other similar activities51.
In the Canadian case, as happened in the US ones, in order to decide which right had to prevail, the court applied a test made of five steps:
“the applicant must establish a prima facie case against the unknown alleged wrongdoer;
the person from whom discovery is sought must be in some way involved in the matter under dispute, he must be more than an innocent bystander;
the person from whom discovery is sought must be the only practical source of information available to the applicants;
the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs;
the public interests in favour of disclosure must outweigh the legitimate privacy concerns”52.
The judge stated that since file sharing could not be univocally considered illicit, and privacy was “of utmost importance to Canadian society”53, the interest of privacy protection had to prevail54.
The CRIA appealed55. In the opening words of the Federal Court of Appeal’s decisions, the “case illustrate[d] the tension existing between the privacy rights of those who use the Internet and those whose rights may be infringed or abused by anonymous Internet users”56.
The Court of Appeal specified that, although the lower court erred in judging file sharing as legal, CRIA’s request had to be rejected, even only for the time passed between the collection of IP addresses and the request for users’ identification57.
2.4 Some Preliminary Thoughts
Even if only briefly illustrated, the selected case law shows the conflict springing from the introduction of a new technology (i.e., file sharing) in the existing legal scenario. Indeed, looking closer, both rights (privacy and copyright) seem to sprout exactly from the introduction of a technological innovation, whether revolutionary or not58.
Facing a new situation, judges, who cannot avoid making a decision, have to understand which of the two conflicting legal spheres has to prevail. The judge finds herself in need of balancing rights whose prevalence is not predefined by the system. Each of the countries examined lacks a norm indicating clearly which road has to be taken: in all the systems, the two rights seem to have the same rank.
Data protection is usually considered part of the right to privacy, either as an interpretation of it or as a way to protect privacy itself. In each of the three countries examined, both courts and scholars have made efforts to trace back the right to privacy to national constitutions, despite the fact that none of the constitutions explicitly mentions privacy. As for the US, privacy is usually linked to the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution59. In the Canadian system, the protection of privacy comes from the Charter of Rights and Freedoms of 1982, and in particular from Sections 7 and 860. In the Italian context, a right to privacy has been retraced to arts. 2, 3, 13, 14, and 15 of the Constitution, as can be read in the famous “Soraya” decision61. Furthermore, the European Convention on Human Rights (art. 8) and the Charter of Fundamental Rights of the European Union (art. 7) sanction in the same way the need to respect private and family life.
As for copyright, the US system explicitly protects it through Clause 8, Section 8 of article 1 of the Constitution, which includes the so-called copyright clause. As is well known, according to this section, Congress “shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Through this section, Congress acquires the competence to legislate on this subject, and meanwhile, copyright is consecrated as an exclusive right of authors, even though limited in time. In Canada, legislative power on copyright is exclusively given to the Congress as well. This can be inferred from Section 91(23) of the Constitution Act of 1867, nowadays part of the Canadian Constitution. This section considers copyright a constitutionally recognized right, even though the same section does not give a definition. In the Italian context, copyright is traced back to arts. 9 (on the development of culture and scientific and technical research), 21 (freedom of expression), and 33 (freedom of arts and science). It is also connected to arts. 2 and 4, which consider the protected work an activity concurring in the spiritual or material progress of society. Finally, art. 17, co. 2 of the mentioned Charter of Fundamental Rights of the European Union states that “Intellectual property shall be protected.”
Looking at the results of the illustrated cases, it is possible to make the following observation62: in the US, the majority of the cases results in a win for copyright holders; in Canada, even if the sample is very limited, one can say that the protection of information privacy prevailed on copyright. This last statement is true also for the Italian context.
It often happens that the context in which judges work does not allow a clear predetermination of the prevailing interest, and on the contrary, that same context puts the judge in front of provisions that allow a certain degree of discretion. Which parameters should judges follow to determine the prevalence of one or the other right in these situations? And which parameters did in fact judges adopt in the concrete cases?63
There are a number of different mechanisms, which judges follow in their decisions. “Classical” balancing mechanisms concern the techniques used by courts to weigh different rights and interests against each other. These methods, which have been analyzed by many scholars, are applied especially by the highest courts, such as constitutional courts, valuing the compatibility of a given norm vis–à–vis the constitution64. Balancing mechanisms appear to be external, meaning that they are objectively observable by reading judicial decisions. The study here proposed looks for a different approach, under the mentioned sociocultural analysis. My idea is to look through judicial decisions and see whether judges are culturally influenced, besides the actual methods of balancing applied. Judges are indeed part of the social structure by which they can be influenced65: culture can affect judges66.
In my analysis, the concept of “legal culture” plays a pivotal role. Legal culture can approximately be described as a factor (or at least one of the factors) in helping to explain the differences between so-called law in the books and law in action67. A straightforward definition of legal culture considers it a cluster of “ideas, values, attitudes, and opinions people in some society hold, with regard to law and the legal system”68. The concept of legal culture is not an easy one69, and while explaining some mechanisms, it also involves some complications.
Every state seems to have its own culture70, even though in the time of globalization it can seem obsolete to talk of cultures enclosed within national borders71. This is the reason why I believe it is possible to talk, for example, of an “Internet users’ culture” or a “file-sharers’ culture,” which necessarily go beyond national boundaries. To this extent, a person can belong to different cultures at the same time72. Despite not being legal cultures, these cultures affect the legal culture of judges, since judges are part of the same social context.
After making these premises, I want to stress that the present analysis does not aim to indicate which methods of interpreting the law are correct. On the contrary, this paper is intended to be a first step towards investigating the interpretation and balancing made by judges, as it will emerge from the next paragraphs.
3 “Conception” and “Perception” of File Sharing
In the previous paragraphs, I referred to some statutory provisions applied in the cases examined. Now, I would like to give a synthetic picture of these regulations, trying to describe each system’s policy on copyright and file sharing. In this work, I use the term “policy,” meaning the main line of legislative intervention, the organic set of laws, and policies on a particular subject matter in a country73: in other words, this is what I like to call the “conception” of a legal system on a specific institution.
At the same time, I would like to illustrate the reflection of file sharing on the three societies (and vice versa), as well as the existence of so-called social norms in this area. Psychological and sociological researches will allow me to sketch also the “perception” of copyright and file sharing, which I intend as the cultural feeling and social attitude towards the institution.
The first thing worth mentioning is that, unlike what happens for informational privacy, copyright benefits from a number of international treaties, which somehow uniform the disciplines of the signatory countries. Clearly, the supranational intervention deeply affects national regulations, aligning them to a greater or a lesser extent. This can drift domestic policies away from national cultures and perceptions74.
If one looks at the body of norms protecting copyright, one notices that the Italian and the US systems have adopted, up to now75, a more protective approach than the one taken by Canada. Some examples will clarify this statement.
First of all, as illustrated in the brief reconstruction of the cases, Italy and the US have legal provisions that punish file sharing as an illegal activity. These provisions are (also) the result of the implementation of WIPO treaties, which at the time of the decisions here considered had not yet been applied by Canada. Even if the WIPO Copyright Treaty does not explicitly sanction file sharing, it introduces a right to make available through its art. 6, which undoubtedly makes room for punishing file sharing as a “making available activity”76. In wider terms, copyright statutes in the US and Italy have undergone endless modifications in order to keep up with technologies that ease the infringement of copyright. Canada instead chose a softer approach.
The existence—in Italy and the US—of specific provisions that help the enforcement of copyright and that are conceived specifically and exclusively for this right (art. 156bis, l. 633/41, and §512 (h) US Copyright Act) indicates the strong will to protect this right77. Unlike what happens in these two countries, in Canada there is no specific provision, and consequently the normal procedure applicable to any kind of controversies, to protect any other right, applies78. Giving copyright holders a tool that is not contemplated for other rights—privacy included—gives a privilege to copyright, providing it with a “fast track”79.
Another important issue, which is different but closely related to what is described here, is ISPs’ liability. Once again, Canada finds itself in a different position when compared to Italy and the US: up to the implementation of Copyright Modernization Act of 2012, Canada lacked a specific discipline on this subject. Courts simply applied analogically what had already been defined for similar cases in the “analogical” era, stating, for the majority of cases, no ISP liability for users’ illicit activities80. On the opposite end, both the US and Italy, more than a decade ago, implemented a specific discipline that considers a graduation of liability for ISPs, according to their concrete functions81.
Clearly, most of the divergences registered between Canada and the other two countries come from the delayed implementation of WIPO Treaties made by Canada. Nevertheless, the interpretation given by Canadian courts is also the most open and most malleable among the three countries. The most evident signal of this “soft” attitude is the interpretation wave of the Canadian Supreme Court, which has been applying a lenient approach to copyright, which seems to be ongoing82. Hence, even though international treaties on copyright exist, differences persist among the countries, due to implementation and application of the treaties83.
I chose these examples as clear explanations of the way in which the three countries approach copyright.
I shall now illustrate how societies perceive the same right.
The respect of copyright laws has been declining with the diffusion of digital technologies and the Internet. But despite what one might think, this decline is not a new phenomenon84.
Many have been analyzing the reasons of this decline. Normally, when a statute is not respected, there can be numerous concurring causes. Two of these factors are “morality” and “legitimacy.” The former concerns an individual’s personal feeling about what is right and what is wrong. The latter, instead, is related to one’s feeling that one should obey the law. When these factors are there, voluntary compliance is promoted. People do not uniformly consider breaking the law as morally wrong: attitudes vary according to different types of illegal behavior. The findings on the scarce compliance with intellectual property law mean the lack of a public perception that breaking intellectual property law is wrong. Law can have a great symbolic function if it is in line with public views about what is fair, but it loses this power as the formal law departs from public morality85.
Legitimacy has instead a great advantage on morality: when something is perceived as legitimate, citizens obey the law even if they do not feel that it is consistent with their personal morality. Legitimacy is closely related to the procedures through which legal authorities make rules. A central issue relates to the fairness of decision-making authorities: together with fairness, another important characteristic is trustworthiness of legal authorities; when people feel that authorities are trying to be fair towards them, they are more willing to accept and obey rules86.
In the field of intellectual property, there is the perception (or, rather, the awareness) that laws, for the most part, respond to lobbies’ interests87. There is no reason to think that this mechanism applies to each of the three countries examined here. Nevertheless, up to now, it seems that Canada is the most “lobby-proof” or is lobbied to the same extent by both sides among the three systems. This can be one of the reasons why, to date, Canada has the softest of the three copyright policies analyzed88.
The existence of lobbies in the field of copyright seems to be in contrast with the absence of a similar phenomenon in the field of privacy protection. Or, rather, despite the existence of associations defending privacy and anonymity, lobbying potentialities appear fewer both in terms of quality and quantity89.
Another factor affecting the respect of copyright law is the existence of so-called social norms, going in the opposite direction of the legislative provisions90. “Social norms are the informal social and moral standards of a particular group which regulate the behavior of individuals within that group”91.
These norms can affect the making and enforcement of laws and are themselves influenced by the birth and enforcement of laws92. Social norms prescribe or forbid some behaviors to single individuals or to groups of a given community and are considered binding for the community itself or at least for a part of it93.
Empirical studies have been carried out to demonstrate the existence of social norms on file sharing94. These researches show how, especially among youngsters, there is the sensation that sharing copyrighted content online is not a wrongful behavior95. On the contrary, there seems to be mutual support upon this practice within the Internet community96. In addition to this, let us consider the persistence of this phenomenon in which millions of people take part every day: they illicitly share copyrighted content online97, despite antipiracy campaigns and legal actions begun in different ways by copyright holders98.
This perception is homogeneous among the three considered systems, and it actually goes well beyond their national boundaries. Therefore, one could maybe talk of an “Internet culture,” or of a “file-sharers” culture, considering the wide diffusion of the phenomenon99.
It might be hypothesized that, in the decisions here briefly illustrated, judges were influenced by the social (negative) perception of copyright. Indeed, if we consider the existence of a common perception of copyright and of specific social norms, we can infer that judges can feel these factors as important and can therefore be influenced in their decisions.
4 “Conception” and “Perception” of Informational Privacy
As far as the concept of privacy is concerned, the first assertion that can be made is that the regulations of Italy and Canada are quite close to each other, while they deeply differ from the US legislation100.
I shall start by saying that at the international level, there are no treaties or conventions on the regulation of privacy or data protection. The only international text that can be mentioned is the OECD Guidelines of 1981. Even though not binding, these guidelines were the basis for the regulation in Europe and in the US101.
In fact, US legislation is based on a number of different acts that are normally not linked to each other: they are often a response to temporal needs or scandals102 or are introduced to regulate specific and narrow sectors103. Hence, the protection of privacy is delegated to a fragmented, sectorial legislation, which is not able to face all the situations: the result is that, contrary to what happens in Canada or Italy, in the US, in most daily situations implying privacy issues, there is no specific protection104.
In addition, legislative interventions are mainly focused on the regulation of the intrusion of the state in citizens’ lives (broadly speaking)105.
Finally, there is a peculiar aspect of the conception of privacy in the US. Some rights and freedoms, which in other systems would be considered as autonomous, in the US are traced back to the right to privacy106. This right becomes therefore much broader and is able to cover a high variety of circumstances. This perspective strengthens and weakens at the same time the right itself: if, on one hand, privacy is strengthened by the fact that it is often pleaded to protect a situation, on the other hand its omnipresence makes it more evanescent, feebler107. Moreover, in the US, some freedoms, such as freedom of expression or of the press, are considered sacred: privacy has been sometimes treated as an obstacle to them108.
The Canadian and Italian scenarios are different from the US one and are closer to one other109. Both systems have at least one important and all-embracing regulation on privacy (i.e., PIPEDA and the Italian Codice in materia di protezione dei dati personali). Canada also has the Privacy Act of 1985, relating to the public sector. Strict rules apply in both countries, where the data subject’s consent is at the center of the regulation, and is meant as a cornerstone.
This approach is in contrast with the US one, where there is mostly an opt-out regime (vis-à-vis the Italian and Canadian opt-in)110. In an opt-out system, the processing of personal data can be made regardless of the data subject’s consent: it is the subject herself who explicitly opposes the processing.