Keeping the pirate at bay? A comparative discursive analysis of US and EU court decisions on copyright liability of intermediaries

It is no secret that the creative sector has struggled to find its way in digital waters. From their perspective, pirates have looted their coffers empty, leaving them with little room to invest in new talent. Defense tactics have included awareness campaigns among users to encourage legal use of copyrighted content, an emphasis on business models that allow for flexible use, and taking illegal users and digital intermediaries to court. This paper focuses on a selection of court cases in Europe and the United States pertaining to The Pirate Bay and Grokster. The Pirate Bay and Grokster are platforms that facilitate sharing of creative content, often without permission of right holders. Worldwide they have been subject to court cases to take down or block access to the platforms. We compare a selection of these cases dealing with peer-to- peer file-sharing platforms, using discourse analysis as a technique to decipher the courts’ argumentation. At the heart of these cases has been the discussion on the responsibility and pro-activeness of a digital intermediary in monitoring content, as well as the balancing of competing rights and values, in particular the right to intellectual property and freedom of expression. We opt for cases from Europe and the US, because they have similar copyright and liability regimes, and present our results on the European Court of Human Rights (ECtHR Kolmisoppi), the High Court of the United Kingdom (UK Dramatico I & II), the Court of Justice of the European Union (CJEU Stichting Brein) and the United States Supreme Court (US Grokster). Comparing the diversity on the courts’ argumentations allows us to draw conclusions on the way in which the liability of digital intermediaries as important – perhaps even quintessential – actors of the digital economy is developing in judicial interpretations, and hence in the information society at large.