Liability and Access to Contact Information - Striking the Balance When Service is Used to Distribute Copyrighted Digital Content

Abstract

This Chapter addresses fragmentation caused by legal intervention in cases regarding unauthorised access to digital content. It is argued that fragmentation of legal rules may constitute a positive cap on liability connecting digital infringement to similar standards used in assessing real world liability, thus revealing silent legal cultures in decision-making. Fragmentation is present in two ways. First, Lessig’s famous statement “code is law” is used to question, whether in essence 1) technological fact dictates law (code is law), 2) legal norms dictate technology (law is code) or 3) whether legal questions can be addressed by legal tools (law is law). This theoretical framework is applied to a series of cases decided by the Finnish Market Court seeking to define a standard of liability for “significant distribution of unauthorised digital content”. The cases, involving pre-release file-sharing of high demand TV-series, boiled down to intricate technological evidence to establish liability. Has law lost its bearings against the digital “it could have been anyone” –defense, or can courts rely on established legal doctrine to establish personal liability? It is argued that courts have not lost discretion to assess credibility of defenses merely due to a technological setting preventing absolute certainty of fact. The second broader issue of fragmentation links to democratic and constitutional values reflected in silent legal cultures. If law is law; thus nationally flavoured, how do we address the question of fragmentation based on territoriality? This relates to differences in compensation cultures for digital copyright infringement in Finland and abroad. Pressure is put on teleoperators to release contact information of users of internet services. Consequently, the Finnish Market Court has balanced competing interests in several decisions. The Market Court indirectly addressed the issue of scope of liability by establishing infringement of Nordic, not global rights. The court was reluctant to grant the right holder access to information that could be used against Finnish defendants in other jurisdictions. First, if law is subordinated to code, it escapes Finnish jurisdiction, because technology is global. Second, if code is subordinated to copyright law, it escapes Finnish constitutional values, because development of copyright law is global. Third, if local democratic and constitutional values may influence actual liability for digital copyright infringement, right holders may not abuse court procedures to bring suit in forums with higher punishment or compensation cultures. These silent legal cultures, whether national, regional or global have great impact on balancing interests in practice.