Keeping the Pirate at Bay? A Comparative Discourse Analysis of Court Decisions on Peer-to-Peer Copyright Liability & Blocking Judgments

This paper adds to the panel on regulatory governance of the digital sector from a legal, historical and comparative perspective. The paper analyses the discourses that various courts have engaged in while adjudicating on peer-to-peer (P2P) file sharing cases. Our claim is that, from the perspective of a societal discourse on essential values, the case law is thin and uneven. We also investigate whether/how the bias in the judicial discourses correlates with the subsequent regulation of and the outcomes in digital markets (resulting in the ‘sinking of the Pirate flotilla’). This paper focuses on a selection of court cases in Europe, the United States and Australia pertaining to The Pirate Bay and Grokster. The Pirate Bay and Grokster are P2P platforms that facilitate sharing of creative content, often without the permission of right holders. Worldwide they have been subject to court cases, typically obliging Internet access providers to block access to the said file sharing platforms. While policy attention has turned as of late to the responsibility of social media platforms, there is value in looking into battles surrounding blocking injunctions as well, as they tell a story of competing voice and choice for the online environment. Not common in legal studies, we use discourse analysis as a technique to decipher the courts’ argumentation in order to tease out value-related aspects of the cases. Specifically, we ask the questions: in the selected cases, whose voices do the courts elevate, and through which narratives do the courts present the voices? (How) do these discourses reflect the regulatory and market outcomes? We compare five cases, ranging from 2012 to 2016, from the European Court of Human Rights (ECtHR Neij and Sunde Kolmisoppi v. Sweden), the Court of Justice of the European Union (CJEU Stichting Brein v. Ziggo & XS4ALL), the High Court of the United Kingdom (UK Dramatico Entertainment et al. v. British Sky Broadcasting et al. I & II), the United States Supreme Court (US Metro-Goldwyn-Mayer Studios v. Grokster) and the Federal Court of Australia (AUS Roadshow Films v. Telstra). We conclude that (1) the courts only engage in value balancing to the extent necessary (2) the courts almost exclusively use the voice of P2P platforms to the latter’s disadvantage, while building authority into the courts’ own argumentation by using the voices of copyright holders, government, case law, legislation, as well as experts. Relevant to the EU, we also find that, (3) of the researched courts, the CJEU’s jurisprudence stood out as being the least communicative. Currently underlit in political science, we seek to give more attention to court’s post-regulatory role and call for more dialogue with counter arguments and alternative value considerations in adjudication.