A Pirate is not a Pirate is a Pirate

Blackbeard was a pirate. He shot at people with cannons. The Vikings were pirates. They were into raping and pillaging. Napster was a den of pirates. They gave us free music.

 Something isn’t right here.

Why is copyright infringement called piracy?

It makes no sense.

A pirate is a thief in a boat. Copyright infringement is different from theft. Boats are optional. For example, if I steal your wallet, then you have no wallet. That’s theft. If I used a boat, then I’m a pirate. However, if I make a copy of your brand new novel The Heart of Love

Nothing happens.

You don’t lose anything, except… a possibility: the chance to sell me The Heart of Love.

Likewise, if I give away copies of The Heart of Love to the whole world, then all you have lost are more opportunities. Is this harmful to your revenue? Potentially. Is it theft? Not quite. Is there a boat? I wish.

So why do we call this piracy? Is it a bad metaphor? We surf the web. The web is the ocean. Computers are boats. Therefore the criminals are pirates?

The truth is much stranger. And older. Piracy was born back when… well, back when piracy was born. Blackbeard-style muskets and peg-legs piracy that is. Sometime after the invention of the printing press, back when pirates were a real hazard to your ocean-going health, people started calling copyright infringement “Piracy”. Actually, that’s not quite right. Or weird enough. It wasn’t quite copyright they were talking about. That didn’t exist yet. “Piracy” predates copyright.

Everything making even less sense now?

The connection becomes clearer when we consider how pirates like Blackbeard often got their start in life. They were privateers – legal government backed pirates. Military. Then they went rogue. They become outlaw pirates. Unauthorised. Illegal. Perhaps… a little bit like brother Cuthbert setting up one of these new fangled Gutenberg book making machines in yonder barn without getting the proper permits. Hmmm? Unauthorised! Illegal! Naughty, Cuthbert! Naughty!

Let’s say you don’t like brother Cuthbert churning out bootleg copies of racy Renaissance poetry. You’re in the guild. You got the royal permits. You got the legally guaranteed monopoly on that poetry. Cuthbert is undermining the whole system! Well then, you’ll need a good slur. Something with emotional punch. How about “Pirate”?

Somewhere, someone struck upon this word, and it stuck.

Strangely, by the 1600s “piracy” had become a technical term, whereas copyright as we know it was still on the way. But the word “piracy” likely did play into how we would come to see things. The word “piratedoes two things:

1) it tips the emotional scales against the person working outside the official system, and

2) it creates a sense of how the world ought to be: a world where words and ideas can be treated like gold and tobacco. Things that can be stolen by pirates. Property. Intellectual property. “Pirate” is a very useful word to have if you happen to own those property rights. Touch my property and you are a thief. We hang thieves. And pirates.

This is the view, and the emotion, we have ended up with. Regardless of how copyright ought to be dealt with, the copyright debate has been biased in a certain direction for a very long time. “Piracy” helped put that bias in place, and “Piracy” will help keep it there. It would seem that this paradoxical label was never harmed by its contradictions. Chances are it was popular because of them.

 

Deeper Down the Rabbit hole:

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson. Justin Hughes. (2006). Southern California Law Review [Vol. 79:993], Cardozo Legal Studies Research Paper No. 166. Here

 

© Under Obvious, 2016.