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Vol. 26 No. 6 — June 2009

Stephen J. Dubner, a co-author of The New York Times’ Freakonomics blog, was one of the first to pose the question openly. In his April 13 post, Dubner even asked his audience to suggest substitute names. When he followed up with another post on April 17, he elected the term “downlifting” as the linguistic successor to “piracy.” Dubner’s article followed a pithy analysis by blogger Jenny Kakasuleff of the Indianapolis Liberal Examiner. Kakasuleff’s post was the first I saw this year that questioned the wisdom of using “piracy” within the context of IP, and the timeline on her post suggests she addressed this issue 10 hours before Dubner. Better yet, her lede was flat-out entertaining:

When I heard that “piracy” was the latest buzz word to light up the world wide web, I thought for sure Lars Ulrich had summoned Congress to bellyache about how fans like Metallica’s music so much that they—gasp—download it for their listening pleasure. But alas, all the hype was nothing more than a U.S. Navy showdown with three rogue pirates on a lifeboat, armed with AK-47’s and a hostage. Limewire lives to see another day.

Then what does piracy really mean? The term’s definition and history are important along with the reasons why its continued misrepresentation matters to the country’s copyright policy.

A Brief History of ‘Piracy’

While it may be difficult to imagine today, piracy has long been defined in a way that has little to do with copyright or any other form of IP. Historically, piracy has always been a nautical pursuit that was a way of life, an activity once so commonplace that it has been referred to as one of the world’s oldest professions. Even the stereotypical images of littoral “piracy” that we see today (think of Johnny Depp as the eccentric Jack Sparrow in Pirates of the Caribbean) are inconsistent with the term’s native meaning.

Scholar Alfred P. Rubin’s The Law of Piracy, a comprehensive history of piracy, contends that the practice of piracy originally had a positive (even proud) reputation. During the 10th and 9th centuries B.C. in Greece, small groups routinely engaged in the organized use of force; this was an activity seen merely as part of citizens’ struggle for survival rather than anything immoral or illegal. Those who engaged in piracy seized essential goods, but the practice was not limited to necessities, since pirates also seized goods merely for gain. Whether for need or sport, piracy served as a wholly legitimate alternative to Greece’s main gift-exchange economic transfer system. In this way, piracy was an original underground economy.

The word peirato first appeared in Greek literature about 140 B.C., when it was applied to political and economic communities on the Mediterranean seashore. Rubin claims the peirato formed communities, had religious rites, and handed down musical traditions as did many other social and political groups that existed in that period. Its members saw their actions as proper and legitimate. Further, few other communities considered peirato as outlaws: The term was applied to traditional Eastern Mediterranean societies that others had accepted as legitimate for at least 1,000 years.

The Oxford English Dictionary traces the first English appearance of the word to John of Trevisa, an Oxford-educated translator of early encyclopedias. In 1387, Trevisa translated the word piratae as “see theves,” or sea thieves in today’s language.

In contrast to its sister term “pirate,” it is difficult to pin down an exact date when the term “piracy” first entered the English lexicon. Adrian Johns, author of The Nature of the Book, credits John Fell, dean and bishop at Oxford and a benefactor to the University of Oxford and its press, with coining the term to describe the greed of London printers and booksellers. According to this definition, a person who engaged in piracy (a pirate) was guilty of reprinting a book known to belong to someone else without authorization. However, the term soon broadened to mean “a wide range of perceived transgressions of civility emanating from print’s practitioners.” Johns notes that given this linguistic imprecision, any book could be dubbed the result of piracy, regardless of its source.

Eventually, English usage of the terms “piracy” and “pirates” in language and by British citizens evolved from a comment about the practices of London printers and booksellers in the 17th century into a complaint about American theft of literature from British writers such as Dickens and Tennyson in the 18th and 19th centuries. At the time America declared its independence from Britain, many books that circulated in the country were imported, and copyright laws were virtually nonexistent until Connecticut passed the country’s first legislation intended to protect an author’s work. Several of the colonial states followed with their own copyright laws.

‘Piracy’ and the Law

The term “piracy” was codified into American legal language in 1891, when West Publishing Co. released the first edition of Henry Campbell Black’s A Dictionary of Law. Also known from its inception as Black’s Law Dictionary (or just Black’s), Black’s has long maintained a reputation as the pre-eminent legal dictionary for American law.

The first primary definition for “piracy” in Black’s is “robbery or forcible depredation on the high seas, without lawful authority … in the spirit and intention of universal hostility.” Black’s has defined piracy primarily in the same way through its sixth edition. Black’s current editor-in-chief Bryan Garner simplified the definition in the seventh edition, but the simplification did not alter the word’s basic, primary meaning: violent theft at sea. The eighth, and current, edition of Black’s retains the same primary definition as the seventh edition. In the end, the primary definition of “piracy” throughout the history of Black’s Law Dictionary has never meant anything but violent theft at sea. This is consistent with part of the core definitions that existed in ancient Greece and Rome as well as the Middle Ages in England.

Several sections of the United States Code, the nation’s official compilation of federal laws, also address piracy. According to the U.S. Department of Justice, the U.S. has had jurisdiction to prosecute anyone who commits the crime of piracy, as defined by the law of nations, on the high seas and is later brought to or found in the U.S. Chapter 18, Section 1651 of the U.S. Code makes it a federal crime to commit piracy; if a pirate is caught and prosecuted in the U.S., the penalty is life imprisonment. This statute has been part of American federal criminal law since May 1820.

Finally, “piracy” is defined in international law as well. The standard international legal definition of piracy is that used in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Part VII, Article 101 defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft. …” There are some problems with this definition: For example, the naval scholar Rubin noted in his book that this definition refers to illegal acts, yet fails to address the law by which illegality would be determined. Still, the UNCLOS definition remains consistent with the concept of violent theft at sea.

In the end, the primary definition of piracy always has essentially meant forcible taking at sea. But how did piracy become connected to copyright and other forms of intellectual property?

Connecting ‘Piracy’ to IP

Since the first edition of Black’s, “piracy” also has had a secondary definition that synonymizes piracy with IP theft. As Henry Campbell Black wrote in 1898, the term “piracy” “is also applied to the illicit reprinting or reproduction of a copyrighted book or print or to unlawful plagiarism from it.” This definition is consistent with the 1798 case Beckford v. Hood, one of American law’s first case citations that invoked “piracy” as a proxy for unauthorized copying. In Beckford, the court characterized the case’s primary issue (an unauthorized commercial republication of a book) as “an action upon the case for piracy of copyright.”

But connecting “piracy” to copyright has as much to do with historical developments in this country as the law. According to Oren Bracha, a University of Texas law professor and author of a 2008 study titled “The Ideology of Authorship Revisited,” copyright law began changing in the late 18th century from being a publisher’s privilege to being an author’s right in his or her creative and intellectual work. Copyright changed again in the 19th century, evolving from being an author’s right to being considered a general ownership of creative works. This construct of general ownership, along with the nascent commoditization of books, established copyright as the protective regime for original, creative works at a level that had
expanded from a limited entitlement to reproduce or reprint a book to a broader property right wherein the original article and all of its derivatives were owned by the author (or increasingly, an entity that had secured rights from the original author). Despite the law’s rejection of copyright as a perpetual property right in cases such as Donaldson v. Beckett (1774) and Wheaton v. Peters (1834), copyright became conceptualized as ownership, says Bracha.

The errant reconceptualization of copyrighted works as property that is subject to ownership is critical to the “piracy” trope. By seeing copyrighted works as property that is subject to ownership, and with copyright ownership becoming increasingly subject to corporate interests that are responsible for generating positive quarterly earnings reports, it is easier to convince others (including Congress) that any use of copyrighted works that is not paid for or otherwise permitted is theft or piracy. The increasing tilt of copyright law to allow for total control, which is a prerequisite for commercial exploitation of copyright-protected “property” in a digital age, reflects this reconceptualization.

The Effect on the Average Joe and Jane

Regular readers of my online publication Copycense have known for some time that piracy has nothing to do with IP theft. We discussed the problems with the confusion in April 2007: “[A]t some point the ‘piracy’ frame must be uncovered for what it is: public relations blather. It is sexy, simple, and concededly well-designed blather, but blather nevertheless. … Instead of ‘piracy,’ we call on journalists, editors, and bloggers to use the phrase ‘alleged infringement.’”

The Freakonomics blog picked up on Copycense’s exploration of the meaning of piracy on April 23, 2009. However, one of the comments to this post questioned the wisdom of the “piracy” construct. “This is an absurd argument,” wrote a person who identified himself as Larry Gritz. “‘Piracy’ as a term for copyright infringement dates to the 1800’s, back when it referred to ripping off sheet music. Can’t anybody see that ‘piracy’ can encompass many types of stealing, and thinking that it must for all time refer … to hijacking ships is childish.”

With all due respect, this is why the frame of piracy matters.

Two days before the blog post discussed deconstructing the frame of piracy, Vice President Joe Biden stood before entertainment industry executives at an event organized by the Motion Picture Association of America (MPAA) and promised them that President Obama’s forthcoming selection for Intellectual Property Enforcement Coordinator would meet their approval. (For more on the nation’s IP czar, see “Introducing the U.S. Intellectual Property Czar,” November 2008 IT. ) Biden’s verbal commitment to the entertainment industry follows weeks of Obama appointments to key positions in the Department of Justice; all the appointees had litigated in private practice on behalf of the Recording Industry Association of America (RIAA).

At the MPAA event, a pool report quoted Biden saying that piracy “[is] pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income.” In doing so, Biden not only perpetuated the error that piracy is “intellectual property theft,” but he reinforced the subtext that copyrighted works are no different from tangible goods while parroting the claims that theft of such hurts the artists and results in losses of jobs and income.

These last two claims are specious at best. First, artists (particularly in the movie and music industries) rarely hold ownership of any of the rights in their work; instead, they routinely assign via contract all of those rights to a corporate distributor. Second, several studies and news articles have explored the entertainment industry’s claims of lost revenue and jobs due to piracy and found many such claims to be inaccurate at best and fallacious at worse.

But since the frame of piracy is so embedded in American legislative culture, virtually all of the nation’s recent copyright legislation has been a response at least partially to combat the scourge of piracy. For example, the Digital Millennium Copyright Act (DMCA) can be reasonably seen as legislation that gives corporate copyright owners increased control over copyrighted works so they can fight piracy. The Copyright Term Extension Act retroactively granted an additional 2 decades of protection to all works in part to compensate corporate copyright owners for possible losses due to piracy. The entire annual Section 301 process depends on the entertainment industry’s unsubstantiated estimates of income losses due to piracy (see “Trade Agreements as the New Copyright Law,” March/April 2007, ONLINE).

Even the PRO-IP Act (the legislation that makes the IP czar a cabinet-level position) quickly passed through Congress because large corporate copyright holders felt they needed additional legislative and enforcement tools to fight piracy. In the end, the frame of piracy (as well as the related but similarly incorrect constructs of copyright as property, theft of property, and specious claims of lost revenue) has arguably been the backbone of some of this nation’s most recent and expansive copyright legislation. It has become the exclusive lens through which Congress sees virtually all copyright policy and legislation.

If you are a big-business executive whose interests are represented by the MPAA, RIAA, Business Software Association, or a related lobbying group, this frame is consistent with your view of how copyright law should work. Further, and more importantly, this works to your benefit. But if you are virtually anyone else, including authors or artists who have given away their copyright ownership to one of those same large businesses, the frame of piracy has been exceedingly detrimental to your personal and professional interests and has led to an egregious imbalance in the law.

Until piracy and its frame are defined (or better yet, eliminated totally from copyright discourse), the vast majority of citizens who have an interest in creative works such as music, books, or movies will continue to suffer an erosion of their right to read that book, listen to that piece of music, or watch that video. The erosion comes through longer copyright terms, digital rights management schemes, or restrictive licenses that protect works that should be in the public domain, among other things. 

When it comes to copyright policy and legislation, what serves the best interests of large, corporate copyright portfolio holders does not serve the best interests of the vast majority of the public. Copyright law was never meant to become a tool only benefiting corporate copyright owners exclusively, but it has become just that, in no small part due to the frame of piracy. It is that simple and that serious, unfortunately.