Balancing conflicting rights in the digital age: the case of information privacy vs. copyright enforcement against file sharing

The research, employing a comparative and multidisciplinary approach, aims at understanding the conflict between information privacy and copyright enforcement in the digital era. Throughout the whole study attention will be paid to the effect that technology has on these rights. The systems under scrutiny will be the European one (with particular regard to Italy) and the North American ones (US and Canada). The starting point of this analysis are a number of selected lawsuits in which copyright holders have tried to enforce their rights against Internet users suspected of illegal peer-to-peer downloading. In so doing, copyright enforcement collided with users’ information privacy. In analyzing the way in which these decisions were taken, I shall try to understand how technology affects society. Many studies have demonstrated the interaction between technology and society. Copyright and information privacy laws are themselves a product of technology and innovation. The idea behind my analysis is that technology not only affects society, but that it also affects lawmakers, and even judges (who, directly or indirectly, are lawmakers as well). Indeed, 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. In other words, technology influences society, which, in turn, affects judicial opinion. To assess if my statement is sound, I shall consider the perception of copyright, limited to file-sharing activities, in the three normative systems. The same analysis will be undertaken with regard to information privacy. As will be seen, unsurprisingly, technology has affected in many ways the substance of both privacy and copyright norms. But technology has also affected people’s lives, people’s way of behaving, and, in the end, people’s minds. This has led to a different perception of the need to protect the aforementioned rights, even if in opposite directions. Privacy concerns have been increasing, while copyright is more and more seen as something “negative”, for a variety of reasons. Given this, a plausible answer to my main line of inquiry is that courts’ decisions reflect this common sense position of prioritizing privacy over copyright. In particular, I shall examine the literature related to the way courts judge and if and how they can be influenced by the society and culture in which they operate. Importance will be given to the way that this influence could enter into judicial reasoning. If it is true that technology changes society, which in turn affects the judicial mind, then technology enters into this contextual backdrop for adjudication. Therefore, the question I would like to answer is the following: could this be a reason why, despite similar legal frameworks, the outcomes of lawsuits are quite different among the considered legal systems? This would be the goal of my research, conscious of the fact that anyway my answer would be just one of the many possible explanations.