Abstract
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.
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Notes
- 1.
It cannot be denied that, at least for the Italian context, the classification of copyright as fundamental right is disputed (the opposite is true for information privacy, for which see infra). Although more than one international treaty declares the indispensable protection of copyright (for example, art. 27.2 of the Universal Declaration of Human Rights of 1948 or art. 17.2 of the Charter of Fundamental Rights of the European Union), a lot of criticisms remain. This is particularly true when copyright, as the prince of intellectual property rights, is compared, if not assimilated, to physical property. See, for example, the work of Reyman (2009). See also the paper of Caterina Sganga in this book.
- 2.
The first step was to sue the producers of the software used for the exchange of files. See, for example, the USA Napster case: A&M Records, Inc., v. Napster, Inc., 114 F. Supp. 2d 896, 900 (N.D. Cal. 2000); A&M Record Inc. v. Napster, Inc., 239 F.3d 1004 (2001); the most important case probably remains the Grokster one, decided by USA Supreme Court: MGM Studios, Inc., v. Grokster, Ltd, 259 F.Supp. 2d 1029 (C.D. Cal. 2003); MGM Studios, Inc., v. Grokster, Ltd, 380 F.3d 1154 (9th Cir. 2004); MGM Studios, Inc., v. Grokster, Ltd, 545 U.S. 913 (2005). It seems that these controversies against software producers did not take place outside the USA.
- 3.
An IP number is “a unique number that identifies the precise location of a particular node on the Internet. The address is a 32-bit number usually written in dotted decimal format, i.e. in the form ‘123.33.22.32’, and it is used by the TCP/IP protocol”; see, Collin (2004), sub verbo: “Internet Address.”
- 4.
Even though the characterization of IP numbers as personal data is still controversial, they have been considered as such by the Privacy Authorities of Canada and Italy, as well as by Article 29 Data Protection Working Party. See the opinion of the Canadian Privacy Commissioner, PIPEDA Case Summaries n. 25/2001—A Broadcaster Accused of Collecting Personal Information via Web Site, at http://www.priv.gc.ca/cf-dc/2001/cf-dc_011120_e.cfm; n. 2005/315—Web-centered company’s safeguards and handling of access request and privacy complaint questioned, at http://www.priv.gc.ca/cf-dc/2005/315_20050809_03_e.cfm; n. 2005/319—ISP’s anti-spam measures questioned, available at http://www.priv.gc.ca/cf-dc/2005/319_20051103_e.cfm: “an IP address can be considered personal information if it can be associated with an identifiable individual.” The same interpretation is made by Article 29 of the Data Protection Working Party, which explains that “IP addresses attributed to Internet users are personal data and are protected by EU Directives 95/46 and 97/66”; cf. Opinion 2/2002 on the use of unique identifiers in telecommunication terminal equipment: the example of IPv6, adopted on May 30, 2002, at 3. The document can be found at http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/index_en.htm#h2-11. There seems to be still some uncertainty on the characterization of IP addresses as personal data by some scholars. See, for example, Coudert and Werkers (2008), p. 50 at 57 ff.
- 5.
Although the cases here analyzed affect primarily personal data protection, judicial decisions often apply the term “privacy.” For decades, scholars have tried to supply an exhaustive definition of “privacy,” frequently overlapping this latter concept with personal data protection (for a recap of the most famous and shared definitions, see McNairn and Scott 2001, pp. 4 ff.). I shall therefore apply the terms privacy and informational privacy interchangeably and both with “personal data protection.” This indistinct application is justified also by the fact that the three countries examined do not have the same system of protection and of classification for these rights.
- 6.
Just to mention a couple of divergences: the classical juxtaposition between common law and civil law systems and the differences existing in the recruitment of judges or in the organization of judicial power.
- 7.
It is not possible to give a complete illustration either of the legislation or of the cases here. I shall therefore supply sufficient information to understand the case studies, the different approaches to privacy and copyright, and the interpretation of the judicial solutions.
- 8.
These companies usually utilize specific software that distributes inoperative or bug files through the same peer-to-peer system accessed by “normal” users. Users access the network and download the inoperative files, as if these were normal music files. In this way, it is possible to trace who is looking for and downloading the files to which the copyright holder has right.
- 9.
- 10.
This provision was introduced by d.lgs. 16.3.2006, n. 140, implementing Directive 2004/48/EC of the European Parliament and the Council, of 29 April 2004, on the enforcement of intellectual property rights, so-called Enforcement Directive, which, in turn, implemented the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreements. More precisely, this provision is the implementation of art. 47 of the agreement. The nature of the tool provided by art. 156bis is debated. In its orders, the Tribunal of Rome classifies art. 156bis sometimes as a precautionary measure and sometimes as a discovery tool. Some Italian authors believe the latter interpretation is the most correct one, such as Marchetti and Ubertazzi (2012), pp. 1849 ff. as well as Sirotti Gaudenzi (2012), p. 450.
- 11.
See Marchetti and Ubertazzi (2012), pp. 1915–1916; Sirotti Gaudenzi (2012), p. 167. These three provisions have undergone various modifications, especially in connection with the aims for which the sharing activities is made. Initially, the text asked for the existence of a “profit-making aim” (“a fini di lucro” in the Italian text). Later on, this aim was substituted with the aim of “gaining a benefit” (“per trarne profitto” in the original wording), but then it was modified again, returning to the original version. This led to fluctuating interpretations and decisions by Italian judges and by the Italian Corte di Cassazione; cf. Terracina (2007), p. 259.
- 12.
This provision undoubtedly refers to peer to peer, but it considers only the introduction of the copyrighted work into the web and not the consequent sharing and diffusion (see Marchetti and Ubertazzi 2012, p. 1916).
- 13.
The relationship between this provision and the one contained in art. 171, co. 1, letter a-bis) is that the former considers the right of “communication to the public” and the latter the right to “make available.” See again Marchetti and Ubertazzi (2012), p. 1939.
- 14.
Trib. Roma, ord., 18.8.2006, Riv. dir. Ind., n. 4–5/2008, II, 328, annotated by De Cata [Trib. Roma, ord., 18.8.2006]; Trib. Roma, ord., 19.8.2006, Dir. Informatica, n. 4–5/2007, 815; Il civilista, n. 5/2008, 30, annotated by Valerini. This latter decision was confirmed also in Trib. Roma, ord., 22.9.2006, and the same conclusion was reached in Trib. Roma, ord., 9.9.2007.
- 15.
See supra note 14.
- 16.
Cf. Trib. Roma, ord., 18.8.2006, supra note 14, at par. 5.1.
- 17.
Exceptions to this principle are provided by the same Code at art. 24 and in other articles, which indicate when consent can be presumed or is anyway not needed. The solution given by the Tribunal of Rome would have been an exception not explicitly provided.
- 18.
See Trib. Roma, ord., 18.8.2006, supra note 14, at par. 6.2.
- 19.
V. supra note n. 14.
- 20.
Cf. Trib. Roma, ord., 16.7.2007, Dir. informatica, n. 4–5/2007, 828, with commentary by Blengino and Senor. See also, with the same contents, Trib. Roma, ord., 14.7.2007, Riv. dir. ind., n. 4–5/2008, II, 330, annotated by De Cata.
- 21.
- 22.
On this case and, more precisely, on the collection of data made by Logistep, the Italian Privacy Authority issued a specific decision on February 28, 2008, published in Bulletin n. 91/February 2008 and can be read at http://www.garanteprivacy.it/garante/doc.jsp?ID=1495246. See also the resolution of September 19, 2007, published in Bulletin n. 86/September 2007 (http://www.garanteprivacy.it/garante/doc.jsp?ID=1442463—spec. par. 5) and the provision on the security of telephone and online traffic data of January 17, 2008, published in Bulletin n. 30/February 2008 (http://www.garanteprivacy.it/garante/doc.jsp?ID=1482111), where the Authority explicitly excluded that ISPs can comply with requests of users’ data if these requests are made in civil, administrative, or accounting controversies.
- 23.
It is the same Code that predetermines when the processing of data is allowed, with logic of “prior balancing.” See, for example, arts. 36, co. 4, letter c); 60; and 71, co. 2 of the Code, where the law talks of rights with the same grade of the right to personal data protection or other personality rights or other fundamental and inviolable rights or freedoms.
- 24.
Trib. Roma, ord., 17.3. 2008, Giur. it., n. 7/2008, 1738, annotated by Sirotti Gaudenzi.
- 25.
C-275/06, decided on January 29, 2008 [Promusicae]. For an analysis and a comment of the decision, see Trotta (2008), p. 76; Caso (2008), p. 459; De Cata (2008); Di Mico (2010), p. 1 (concerning also a subsequent order of the European Court of Justice relating to an identical case that took place in Austria); Coudert and Werkers (2008), p. 37; Groussot (2008), p. 1745; Brimsted and Chesney (2008), p. 275. In 2012, the ECJ decided another case coming from the Supreme Court of Sweden, which originated in a lawsuit very similar to the Italian cases and to Promusicae v. Telefónica; see “Bonnier Audio AB et al. Vs. Perfect Communication Sweden AB” (C-461/10) decided on April 19, 2012.
- 26.
In particular, Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce); Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society; Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights; and Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
- 27.
I believe that the European decision, even if harshly criticized by a number of scholars for its ambivalence (see fn 25), suggests a slight prevalence of data protection on copyright.
- 28.
Promusicae, supra note 25, at pars. 61–63.
- 29.
Promusicae, supra note 25, at par. 64.
- 30.
Promusicae, supra note 25, at pars. 66–68.
- 31.
The present Copyright Act was issued on October 19th, 1976 (Pub. L. No. 94-553) and came into force at the beginning of 1978. It constitutes title 17 of the U.S. Code.
- 32.
Among some of the most recent bills still pending in Congress: Peer-to-peer Piracy Prevention Act, proposed in 2003; Inducing Infringement of Copyrights Act (INDUCE Act), Piracy Deterrence and Education Act, and Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE Act)—all of which were presented in 2004; Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act) of 2008; Combating Online Infringement and Counterfeits Act (COICA) introduced at the Senate in September 2010 and never approved, later presented again with the name PROTECT IP Act (or PIPA—Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) in 2011, together with another very similar bill introduced in House of Representatives called Stop Online Piracy Act (SOPA).
- 33.
Cf. LaFrance (2008), pp. 161–162.
- 34.
In re Verizon Internet Services, 240 F. Supp. 2d 24 (D.D.C. 2003) [In re Verizon]; RIAA v. Verizon Internet Services, 351 F.3d 1229 (DC Cir. 2003); In re Verizon Internet Services, 257 F. Supp. 2d 244 (D.D.C. 2003) [In re Verizon II]. As already done for the Italian context, the US decisions will also be only sketched here. For a deeper analysis of the case RIAA v. Verizon, see Kao (2004), p. 405; Gorski (2005), p. 149; Dutcher (2005), p. 493; Raynolds (2005), p. 343.
- 35.
Black (1979), sub verbo “Subpoena duces tecum” [Black’s Law Dictionary].
- 36.
This paragraph was introduced by the Digital Millennium Copyright Act (DMCA) of 1998, implementing the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) undersigned by USA in 1996.
- 37.
Some problematic questions have been raised with reference to the fact that this subpoena is issued by a clerk, whose functions are administrative and not judiciary. This means that the warranties linked to the evaluation of the judiciary fail. Cf. In re Verizon II, supra note 34, at 248 ff.
- 38.
Reno v. ACLU, 521 U.S. 844 at 870 (1997).
- 39.
Kerr et al. (2009), p. 438.
- 40.
“John Doe” is a fictional name given to a male party of a process when his real name is not known or must remain unknown for legal reasons. Black’s Law Dictionary, sub verbo “John Doe.” The female corresponding is “Jane Doe.”
- 41.
Backerman (2008).
- 42.
Arista Records, LLC v. Does 1-16, 2009 U.S. Dist. LEXIS 12159.
- 43.
Expectation of privacy refers to a test born in the concurring opinion of Justice Harlan in the case Katz v. United States, 389 U.S. 347 (1967) [Katz], to be applied in cases referred to privacy as protected by the Fourth Amendment. The test consists of two steps: the first is to investigate whether the subject demonstrated an actual subjective expectation of privacy; the second is whether her expectation is one that society is prepared to recognize as reasonable. As often happens with tests implying these types of evaluation, the test has been the source of many doctrinal debates, also because it does not give directions to follow in practical cases. On this test, see Wilkins (1987), pp. 1077 and 1089; Ashdown (1981), p. 1289; Libeu (1985), p. 849.
- 44.
It is the same argumentation made by the Tribunal of Rome in one of the analyzed sentences (see Peppermint vs. Wind, Trib. Roma, ord., 18.8.2006, supra note 14, at par. 5.1).
- 45.
See, for example, the following cases: Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004); UMG Recording, Inc. v. Does 1-4, 2006 U.S. Dist. LEXIS 32821 (N.D. Cal. 2006); Elektra Entertainment Group, Inc. v. Does 1-9, 2004 U.S. Dist. LEXIS 23560 (S.D.N.Y. 2004).
- 46.
A summary finding that (1) the claim is founded and (2) the danger that the right may be impaired by the lapse of time. As an example, consider the decision of Trib. Roma, ord., 18.8.2006, supra note 14, at par. 5.1. Some scholars do not share the interpretation of art. 156bis given in this sentence: De Cata (2008), p. 411.
- 47.
- 48.
The current Copyright Act was enacted in 1921 and is the sole copyright legislation applicable, although it has been frequently and substantially amended since its appearance. The last amendment was made with the “Copyright modernisation act” of 2011.
- 49.
See BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, paras. 21–25.
- 50.
I am referring to the mentioned World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) undersigned by Canada in 1997.
- 51.
Canada tried to modify its Copyright Act and to implement the WIPO Treaties with many bills starting from 2005, but due to government collapses, these bills never became law. Only in 2012, the bill C-11 titled “Copyright Modernisation Act” was released. With this Act, Canada implements the mentioned treaties, including the right to make available, as well as other important pieces of legislation (including ISPs’ liability and technological protection measures).
- 52.
BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, paras. 13–14.
- 53.
Cf. BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, par. 36.
- 54.
BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, paras. 36–42.
- 55.
BMG Canada Inc. v. John Doe, [2005] F.C.J. No. 858. See supra note n. 47 for bibliographical references.
- 56.
BMG Canada Inc. v. John Doe, [2005] F.C.J. No. 858, par. 1.
- 57.
In fact, IP addresses are usually “dynamic,” meaning that the addresses assigned are changeable, and not fixed, as static IP addresses would be. ISPs can reallocate the same address to different users in different moments, allowing the intermediaries to manage a number of IP addresses that is inferior to the number of users. Since users linked to an IP address vary with time, the more time passes, the more difficult it becomes to trace the user behind a given IP address.
- 58.
On the one hand, the introduction of movable types generated interests that resulted (also) in the birth of copyright (see, for example, the considerations by Izzo 2010); Deazly et al. (2010). On the other hand, it was a portable camera that causes in two American jurists’ minds the sensation of being the target of yellow journalism: I am clearly referring to the seminal work of Warren and Brandeis (1890), p. 193.
- 59.
Solove and Schwartz (2011), pp. 34–36; Solove and Rotenberg (2003), pp. 33–34; see also the following leading cases: Olmstead v. United States, 277 U.S. 438 (1928); Griswold v. Connecticut, 381 U.S. 479 (1965); Katz, supra note 43; Roe v. Wade, 410 U.S. 113 (1973), and more recently: Kyllo v. United States, 533 U.S. 27 (2001) and U.S. v. Jones, 132 S. Ct. 945 (2012).
- 60.
The following leading cases explain the link between privacy and the Charter: R. v. O’Connor, [1995] 4 S.C.R. 411; M. (A.) v. Ryan, [1997] 1. S.C.R. 157; R. v. Mills, [1999] 3 S.C.R. 668; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, introducing the expectation of privacy (for which see also R. v. Tessling, [2004] 3 S.C.R. 432) and explicitly referring to the US case Katz, supra note 43. See also McIsaas et al. (2007), spec. pp. 2–9. In 1987, the Justice Committee of the Canadian House of Common unsuccessfully suggested introducing a constitutional right to privacy (cf. Flaherty 1991, p. 831, spec. pp. 843 ff., for a deeper analysis).
- 61.
Cass. civ., 27.5.1975, n. 2129, Foro it., 1976, I, 2895.
- 62.
It is important to note that more case studies were analyzed than those illustrated here, but they were not recalled due to space limitations. The other cases are the following—for the US system: Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429 (C.D. Cal. 1979); Universal City Studios, Inc. v. Sony Corp. of America, 659 F.2d 963 (9th Cir. 1981); Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984); A&M Records, Inc. v. Napster, 114 F. Supp. 2d 896, 900 (N.D. Cal. 2000); A&M Record Inc. v. Napster, Inc., 239 F.3d 1004 (2001); MGM Studios, Inc. v. Grokster, Ltd, 259 F. Supp. 2d 1029 (C.D. Cal. 2003); MGM Studios, Inc. v. Grokster, Ltd, 380 F.3d 1154 (9th Cir. 2004); MGM Studios, Inc. v. Grokster, Ltd, 545 U.S. 913 (2005); In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 773 (8th Cir., 2005); In re Subpoena to University of North Carolina at Chapel Hill, 367 F. Supp. 2d 945 (M.D.N.C., 2005); Arista Records, LLC v. Does 1-12, 2008 U.S. Dist. LEXIS 82548; Arista Records, LLC v. Lime Group, LLC, 715 F. Supp. 2d 481 (2010); Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004). For Canada, the cases are Glaxo Wellcome PLC v. Minister of National Revenue, [1998] 4 F.C. 439; Irwin Toy Ltd. v. Doe, [2000] O.T.C. 561; CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.R. 339; SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) 1 C.P.R. (4th) 417; Voltages Pictures LLC v. Jane Doe and John Doe, 2011 FC 1024. For the Italian context, in addition to all the orders relating to the Peppermint casa, also the “Fapav v. Telecom” case was considered (Trib. Roma, ord., 14.4.2010, Riv. dir. ind., n. 3/2010, II, 248 with commentary by Mula).
- 63.
It is absolutely evident and obvious that the differences among the three countries considered go well beyond what I can illustrate in the next paragraphs. As an example, let us think of the classical differentiation between common law and civil law systems.
- 64.
See, just as examples, with reference to Italy: Pino (2007), p. 219; Bin (1992), spec. pp. 56 ff. With regard to the US: Aleinikoff (1987), p. 943; McFadden (1988), p. 585, as well as the earlier seminal work by Dworking (1978). See also the book of Alexy (2002), in which the author theorized a “law of balancing,” according to which “[t]he greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other” (p. 102).
- 65.
- 66.
Culture is here meant as follows: “a complex of conceptions, knowledge, ideas, norms, values, by which a population is inspired in its daily life”; cf. Ferrari (2004), p. 23. Gunnar Beck believes that “[j]udges have personal values and convictions but they also share many assumptions, values and beliefs as a result of common legal education and training, reinforced by a professional lifetime working in and with the law”; cf. Beck (2012), p. 39.
In my analysis, I shall refer to what Lawrence Friedman called “external legal culture.” The author recognized a distinction between external legal culture (legal culture of the entire population) and internal legal culture (legal culture of the part of the population that carries out specialized legal activities); cf. Friedman (1975), p. 223. Judges clearly represent a part of the population with specialized knowledge in law, and which can therefore have its own internal legal culture. Nevertheless, what I would like to stress is the influence of external legal culture on their decisions and not on their own legal culture. For a criticism of Friedman’s idea, see Engel (2012), pp. 77 ff.
- 67.
This antithesis can be traced back to the essential works of Roscoe Pound, founder of judicial realism. Just to have an idea of his interest in interdisciplinarity and, in particular, of his attention to the social framework, see Pound (1907), p. 911.
- 68.
Friedman (1994), p. 117 at 119. According to this author, “[e]very person has a “legal culture,” just as every person has a general culture, and a social culture; every person has individual, unique traits, as distinctive as his or her fingerprints; but each person is at the same time part of a collective, a group, a social entity, and shares in the ideas and habits of that group.”
- 69.
- 70.
National culture clearly changes with time passing: cf. Nelken (2004), p. 6.
- 71.
But see again Nelken (2004), p. 3. The author writes: “[w]hat does seem undeniable is the extent to which legal culture is becoming ever more what we could call ‘relational’. With increasing contact between societies there are ever more opportunities to define one’s own legal culture in terms of relationships of attraction to or repulsion from what goes on in other societies”; Ibidem, p. 7.
- 72.
- 73.
In this short paper, I can only outline some aspects of copyright in the three countries examined. In addition to the works mentioned here, for a deeper understanding of their approach, see, for Italy, Musso (2008) and Greco and Vercellone (1974). For the USA, see Merges et al. (2012), Halpern (2010), and Nimmer and Nimmer (1978–2012). For the Canadian system, see Judge and Gervais (2011), Handa (2002), McKeown (2000), and Vaver (2000).
- 74.
The first of these international treaties is the Berne Convention for the Protection of Literary and Artistic Works, from 1886, which obligated the signatory countries to recognize the copyright of works of authors from other signatory countries (each of the three countries examined joined the Convention in different moments). Other more recent international treaties are the WIPO Treaties of 1996: The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The latest document signed by a high number of countries was the Anti-Counterfeiting Trade Agreement (ACTA), including a number of provisions aimed at protecting intellectual property rights and, more precisely, relating to their enforcement. At the moment, ACTA has been ratified only by Japan and will come into force only when at least six signatory countries will ratify it. Protests against ACTA seem to be on the rise also as a way to contrast a sort of “Americanization” of the legal solution for copyright: cf. Gracz (2013b), p. 21 at 24. This eventual expansion of the American approach affects the peculiarities of national regulation for copyright.
- 75.
See infra for an account of the recent reform implemented in Canada, which will change the scenario at least partially.
- 76.
In addition, art. 8 of the same treaty introduces a “right to communicate to the public,” providing that “authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”
- 77.
These provisions are a consequence of WIPO Copyright Treaty art. 14, which in its second part states that the Parties have to ensure the existence in their law of enforcement procedures to permit effective action against infringement of the rights covered by the same Treaty, including expeditious remedies to prevent infringement.
- 78.
As illustrated, the tool provided by the DMCA was ineffective for the purposes of the copyright holders in the specific cases. The consequence was that RIAA had to apply the “John Doe” process, placing the subsequent US cases on the same ground of the Canadian context.
- 79.
Different approaches apply also to other branches of copyright law, such as Digital Rights Management (DRM) or Technological Protection Measures (TPMs). The introduction of a regulation of DRM and TPMs in Canada was postponed for years, since it was part of the aforementioned bills that never became law. Changes in these fields came, once again, with the Copyright Modernization Act, for which see supra note n. 51.
- 80.
Canadian scholars seem to give this interpretation to the leading case CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.R.; cf. Judge and Gervais (2011), p. 184. See also the so called “Tariff 22” case: Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Canadian Association of Internet Providers, [2002] 4 F.C. 3; Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Canadian Association of Internet Providers, [2004] 2 S.C.R. 427. After the implementation of the Copyright Modernization Act, ISPs’ liability discipline is included in Section 31.1 of the Canadian Copyright Act.
- 81.
US: Online Copyright Infringement Liability Limitation Act (OCILLA), § 512 Copyright Act. Italy: art. 14–17, d.lgs. 70/03, implementing European Directive 2000/31. Reading the case law, it comes to light that in both countries, the limitations to ISPs’ liability have been conceived as a sort of compensation for the collaboration of ISPs in the fight against so-called piracy and similar phenomena. See, for USA, In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 773 (8th Cir., 2005) and In re Verizon, supra note 34 at 37. As for Italy, see Trib. Roma, ord., 9.2.2007, Riv. dir. ind., n. 4–5/2008, II, 328, with comment by De Cata (2008) (again in the context of the controversy between Peppermint and Wind).
- 82.
I am referring, for example, to BMG Canada Inc. v. John Doe, and CCH Canadian Ltd. v. Law Society of Upper Canada or, again, to the mentioned case “Tariff 22.” More recently, five decisions taken by the Supreme Court in July 2012 (the so-called copyright pentalogy, namely, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 SCR 231; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283; Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 SCR 326; Alberta (Education) v. Canadian Copyright Licensing Agency, 2012 SCC 37, [2012] 2 SCR 345; Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38, [2012] 2 SCR 376) greatly sustained users’ rights, somehow narrowing copyright. The decisions enlarged the province of fair dealing exceptions, which according to the Supreme Court must be interpreted liberally. The Justices also stated that technology is neutral: the different types of technology through which the content is obtained and enjoyed does not modify the system of protection of copyrighted works. Furthermore, copyright cannot be an obstacle for technological progress. For a deep overview of these five decisions, see Geist (2013).
- 83.
Clearly, only time will tell how Canadian courts will interpret the new Act.
- 84.
- 85.
Tyler (1997), pp. 224–227, passim. The author makes the example of “fair use”: in his opinion, the public seems to be operating within a sort of implicit standard of fair use, believing that some behaviors are acceptable while others are not. As another author notes, “law will not work as law unless it seems to people to embody the basic commitments of their society”; cf. Whitman (2004), p. 1153 at 1220 (emphasis in original).
- 86.
- 87.
It is sufficient to take into consideration the terms extension to which the USA Copyright Act has been subjected. It is no accident that the Copyright Term Extension Act of 1998 has been called “The Mickey Mouse Protection Act” due to the lobbying efforts made by Walt Disney Company. This Act is just a single example of a consolidated practice; cf. Litman (2009), p. 313 at 314. In one sense, this is probably true since the birth of copyright as we know it. See Izzo (2010), passim. The entire book aims to explain the interests behind the birth of copyright and droit d’auteur, which in the majority of cases were not authors’ interests.
- 88.
As an example, see the questions posed by US copyright lobbies against the entrance of Canada into the “Trans-Pacific Partnership” (a free trade agreement that includes nations of both sides of the Pacific, which can be found at http://fpc.state.gov/documents/organization/145583.pdf): Geist (2012).
- 89.
Lobbies on privacy work in the opposite direction to the protection of privacy of users. Let us think of big companies such as Google, Yahoo!, Facebook, and so on, whose businesses are based on information as commodity.
- 90.
- 91.
Quotation from Neri (2005), p. 733 at 746. For a general review of sociological theories on social norms, see Horne (2001), pp. 3 ff.
In the last years, social norms on copyright infringement have been studied widely. I will here just mention them in order to illustrate my point. For further bibliography, see the contributions mentioned here.
- 92.
Schultz (2006), p. 202.
- 93.
See Pocar (1997), pp. 29 ff. A more complete definition given by Luciano Gallino: variously articulated and codified statement prescribing to an individual or to a community, as a stable element characterizing its culture or subculture (or another foreign culture or subculture to which it is exposed at that moment), the conduct or behavior that is the most appropriate (i.e., “right”) to comply with. This prescription is made taking into account the subject’s characteristics, the actions she possibly endures, and the resources she has. It also prescribes, in many cases, which action must be avoided, even if this implies sacrifices or other nature costs: see Gallino (2006), sub verbo “Norma sociale.”
- 94.
I shall take these empirical studies as “given”: the aim of this work is not to judge methodological approaches and results of these researches. These studies are mainly concentrated on US society. However, I believe that their results can be generalized with reference to Canada and Italy. Indeed, file sharing is a common activity in each of the three systems, and P2P users can be conceived as a single “population.” In addition to this, socioeconomic characteristics of the three countries are very close.
- 95.
- 96.
Wingrove et al. (2011), p. 261 at 271.
- 97.
Researches relating this phenomenon are innumerable. See as an example, for the Canadian context, Associated Press (2009) and CIPPIC. For the US, although recent researches show that file sharing is decreasing, it remains around 9 % of the population: see Graham (2011). See also the interesting study conducted by Columbia University: http://piracy.ssrc.org/wp-content/uploads/2011/11/AA-Research-Note-Infringement-and-Enforcement-November-2011.pdf.
- 98.
See again the contribution by Schultz (2006).
- 99.
In the last few years, the aversion to the regulations incrementing the protection of copyright has resulted in real political movements, such as the Pirate Party (born in Sweden as an antagonist to copyright and patents and then spread into many other countries also outside Europe). There have been also other reactions as an answer to the introduction of new statutes that would have incremented the protection of copyright: I am referring, for example, to the US bills SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act) and to the displeasure they generated in the Internet context, not only among users but also among some important actors. These protests have taken place worldwide, moving away from the place where the contested statutes were born (this is clearly linked also to the inner structure of the web, where decisions taken in a given country can have a deep impact also in geographically very distant places). The movement against the adoption of ACTA by the European Union should also be mentioned. Both in the case of SOPA/PIPA and of ACTA, the countries stopped the process of adoption of the new legislation also due to the protests that had taken place. For a deeper understanding of these phenomena, see Milan and Hintz (2013), p. 7. See also, for a reconstruction of the anti-ACTA protests and their meaning, Gracz (2013b).
- 100.
I shall here only briefly illustrate the legislations of the three countries on data protection. For a deeper analysis, see the works already cited in this paper, as well as the following references. For Italy, see Pardolesi (2003), Giannantonio et al. (1999), and Buttarelli (1997). For a historical overview, see the works of Stefano Rodotà, among which Rodotà (1973). As for the USA, see Solove and Schwartz (2009, 2011) and Solove and Rotenberg (2003). For a historical perspective, see the masterpiece by Westin (1967). As far as Canada is concerned, see McIsaas et al. (2007) and Perrin et al. (2001).
- 101.
Solove and Rotenberg (2003), pp. 713–714. An effect of internationalization (or of globalization) is constituted by the measures that non-EU countries have taken in order to properly trade with the European Union. In fact, Directive 95/46 (arts. 25 and 26) provides that European citizens’ personal data can be transferred to third countries only when they are adopting a regulation that is consistent with the protection aims of the EU or when they negotiate specific agreements. The first case is Canada: with the enhancement of PIPEDA; the second case is the US: they negotiated with the EU the so-called “safe harbors principles.” A complete study on the influence of a country’s privacy policy on another’s is Bennett (1992), passim. See also the recent contribution of Schwartz (2013), p. 1966. Schwartz believes that the delicate balance between the US and EU approach made of safe harbors, model contractual clauses, and binding corporate rules could crumble if the current draft for the new European regulation on data protection should pass.
- 102.
- 103.
See, for example, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act of 2003, the Driver’s Privacy Protection Act of 1994, the Children’s Online Privacy Protection Act of 1998.
- 104.
Apart from a specific contract or from the existence of an action in tort (which is not present in each of the confederation states). Cf. Soma and Rynerson (2008), p. 48. For an analysis of the reasons for this sectorial approach and the consequences of the possible adoption of a federal omnibus law, see the close examination by Schwartz (2009), p. 902.
- 105.
As an example, take again the Privacy Act of 1974 or the Privacy Protection Act of 1980 or the Computer Matching and Privacy Protection Act of 1988. For some authors, this is the main difference between the US and the European approaches: Whitman (2004). Cf. also Rotenberg (2001) at par. 27; Pagallo (2008), pp. 70 ff.
- 106.
Think, for example, of the famous case Roe v. Wade, 410 U.S. 113 at 153 (1973). In that case, the Supreme Court struck down a Texas law on abortion. To reach this conclusion, the Court made an analysis of the right to privacy. The Court found that the Fourteenth Amendment due process clause was to be considered an expression of personal liberty, a right to privacy. Furthermore, it stated that “the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”; cf. Ibidem, 153.
- 107.
According to Pagallo (2008), p. 99, it is (even) unclear if in the US privacy is a right (and a fundamental one) or if it is more an interest that, in relations between private parties, does not assume a value itself: it rather has to be funded or justified by something else (emphasis added). A critical view on the ability of courts and policy makers to recognize the interest beyond privacy is made by Solove (2006), p. 477 at 480.
- 108.
- 109.
According to Paul Schwartz, the current divide could further widen if the proposed Data Protection Regulation of January 2012 would come into force; see Schwartz (2013), pp. 18 ff.
- 110.
- 111.
See, for example, the anthropological studies of Altman (1977), p. 66. Consider also the already mentioned work of Whitman (2004). The author argues that Europe demonstrates an idea of privacy based on the importance of human dignity and human rights. This is in contrast with an American idea of privacy as liberty, especially from the intrusion of the state. As another example of the diversity of perception of privacy, consider the scenario of Japan, even if not involved in the present work: Adams et al. (2009), p. 327.
- 112.
European Directive 46/95 mentions many times the need to protect personal data as a way to improve the functioning of the internal market (see, for example, recitals 3, 5, 8). Nevertheless, the important efforts of the European Council need to be taken into account. Indeed, it adopted two fundamental resolutions in the 1970s (one on September 26, 1973 relating to private databases and one on September 20, 1974 relating to public databases). The principles contained in these resolutions were included in Strasbourg Convention n. 108 of 28.1.1981, for the Protection of Individuals with regard to Automatic Processing of Personal Data (ratified in Italy with L. 21.2.1989, n. 98). The Convention aimed (art. 1) at ensuring in the territory of each state the respect of privacy for each individual with reference to the automatic processing of personal data. This Convention posed therefore a primary uniformity among the undersigning states, even though in reference to the sole automatic processing of personal data.
- 113.
Cf. Levin and Nicholson (2005), p. 357. The authors claim that Canadians are not concerned with disclosing their data; rather, they are concerned with the way in which their data are handled: see Ibidem, pp. 391–393.
- 114.
Again, as already said, I shall not discuss the methodology or the results of these researches.
- 115.
- 116.
Milberg et al. (2000), pp. 47–50.
- 117.
In fact, judges are clearly part also of the two categories (lawmakers/policy makers). From a sociological point of view, Friedman explains that a technological change (for example, the introduction of personal computers) does not automatically result in a change in the juridical order. Rather, the technological change modifies the social configuration, the way in which things are in a given society. This, in turn, modifies the way in which people see their society and what they expect from it. This finally modifies also their orientation toward law. See Friedman (1994), pp. 118–119. On the influence that end users have or can have on laws in the field of copyright, see the work of Gracz (2013b), spec. pp. 28 ff.
- 118.
Actually, the circle can also be “vicious.” Think, for example, of those pieces of legislation enacted as a response to mass panic.
- 119.
It is with reference to this influence of judges on society that many legal theory researches have been developed. See, as an example, the work of Rosenberg (1991). The interpretation provided by law professionals supports legislation in a fundamental task: making adaptation of law to social change possible. According to Valerio Pocar, these two aspects of judicial change are always present at the same time. The prevalence of one over the other depends on the higher or lower congruence among laws, social norms, and culture, meaning on the greater or lesser sharing of common values. Cf. Pocar (1997), pp. 159–160.
- 120.
- 121.
Beck (2012), p. 42.
- 122.
Pocar (1997), p. 133.
- 123.
I am referring to the study by Kahan (2000), p. 607.
- 124.
According to Robert Ellickson, when a law is perceived to be the product of lobbyism relating to special interests, this law would not influence the existing norms on the same subject matter: people would not consider that law to be a credible product of a social consensus. See Ellickson (2001), p. 61.
- 125.
Kahan (2000), pp. 614–620, passim. There is a clear correlation between these cognitive theories and the theory of procedural justice.
- 126.
Cf. Sherwin (2010), p. 122. It is possible to consider also the research conducted by Lin (1999), p. 739, spec. pp. 769 ff. Even if the context is clearly very different, this study gives strength to my hypothesis that, when norms are not clearly defined, judges can more easily be affected by cultural perceptions.
- 127.
According to Pocar: “the interpretation of legal norms and their application is the result (also) of the effect of other social norms”; cf. Pocar (1997), p. 138. This reasoning, which appears to be evident when there are “open” norms, can anyway be applied every time a judge carries out her interpreting functions. Furthermore, in the word of G. Beck, “the protection of fundamental individual rights in almost all legal systems curbs the influence of public opinion on judicial decision-making”; cf. Beck (2012), pp. 35–36.
- 128.
In this sense, as mentioned, the Privacy Authority intervention in the lawsuit played a fundamental role.
- 129.
I share the vision of an Italian scholar, who some years ago wrote roughly what follows: “I do not know if a theoretical analysis needs to be able to give solutions to the problems analyzed: certainly, its task is to clarify the real nature of these problems and, when possible, to dissolve them. Sometimes a theoretical analysis can also show that a given problem does simply not have a solution or that the rise of a certain problem is inevitable.” Cf. Pino (2007), p. 221.
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Giovanella, F. (2015). Effects of Culture on Judicial Decisions: Personal Data Protection vs. Copyright Enforcement. In: Caso, R., Giovanella, F. (eds) Balancing Copyright Law in the Digital Age. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-44648-5_3
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eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)