The content industries have been using the terms ‘piracy’ and ‘pirate’ for many years to describe people the law itself would call infringers. In his book “Moral Panics and the Copyright Wars,” William Patry makes it very clear that he considers this term an excessive and exaggerated use of language intended to create a moral panic. That opinion seems to be reinforced when we read about defense lawyers who attempt to exclude the use of the term in a criminal trial, as reported in this blog post on “Can the Government Use the Term ‘Music Piracy’ in a Criminal Copyright Trial?”
Recently, however, another trend is developing, and it challenges the notion that this is an absolute term of opprobrium. I say developing, but I recently ran across this sentence from R.R. Bowker’s 1912 volume on “Copyright: Its History and Law”:
The word “piracy,” since that gentle craft has disappeared from the high seas, has come commonly into use to mean free-booting with reference to literary property.
It is highly unlikely that the content industries would agree that piracy is or ever was a “gentle craft,” but there are indications that those groups are now regretting the prevalence of the term because it sounds romantic and exciting. Several recent blog posts (here and here) have reported on concerns in the entertainment industry that “piracy” sounds “too sexy” and tends to remind people of Johnny Depp. This worry is well-taken; I was recently talking to a lawyer who is 20 years younger than I and he opined that the use of the pirate metaphor was a poor strategy because to folks of his generation, and in general to anti-authoritarian teenagers, the idea of being a pirate was “cool”.
This discussion is interesting to me as I read through Adrian Johns’ new book on “Piracy: The Intellectual Property Wars from Gutenberg to Gates.” Johns makes two important points, I think. First, that the use of pirate and piracy as a way to refer to some types of IP infringement is a very old phenomenon. Like Bowker, Johns locates such usage well back into the 18th century. Second, Johns argues that piracy has often been the driving force behind both technological innovation and the reform of intellectual property laws. So it seems that maybe we should accept the term, at least in a certain context, rather than seeing it as a prelude to moral panic, and also recognize that, if not gentle or sexy, piracy, at any rate, sometimes pushed law in the right direction. It is always useful to remember, for instance, that the video cassette recorder was considered a pirate device by the movie industry for quite some time before they realized — only after they were forced by the Supreme Court to deal with the technology — that it could be the source of considerable revenue.
I suggest that piracy should be reserved for instances of wholesale commercial exploitation of copyrighted material without authorization. Such usage, applied to bootlegged DVD or CD distribution, for example, makes some sense and is congruent with historical precedents. For less systematic acts of unauthorized reproduction and distribution, such as individuals who share files over P2P networks, the word pirate both seems like rhetorical overkill and might well backfire, as the content industries are apparently beginning to recognize.