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Contribution to Collected Edition

Effects of Culture on Judicial Decisions: Personal Data Protection vs. Copyright Enforcement


Giovanella,  Federica
MPI for Innovation and Competition, Max Planck Society;

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Giovanella, F. (2015). Effects of Culture on Judicial Decisions: Personal Data Protection vs. Copyright Enforcement. In R. Caso, & F. Giovanella (Eds.), Balancing Copyright Law in the Digital Age - Comparative Perspectives (pp. 65-98). Berlin; Heidelberg: Springer.

Cite as: https://hdl.handle.net/11858/00-001M-0000-0029-C9AA-D
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.