Over the past few years, I have been studying the history of U.S. copyright law and policy. In particular, I have been probing how the construct of "piracy" became so dominant within copyright discourse. I have concluded that the issue of piracy is firmly entrenched within this nation's copyright policy not as an issue of theft but instead as a multifaceted ethos that dominates and binds discussions about what copyright is and what it should be.
Rhetoric, Metaphors, and Frameworks
Several scholars have written convincingly about the political role of rhetoric and metaphors in shaping contemporary copyright policy. For example, William Patry's book Moral Panics and the Copyright Wars (2009) devotes space to the role of metaphoric language and its purported effect on copyright legislation and policy. Another work, John Logie's Peers, Pirates, and Persuasion: Rhetoric in the Peer-to-Peer Debates (2006), employs what the author calls "rhetorical historicism" to pay attention to the speaker and the institutions that are authorizing the discourse, as well as to critique the relationships between rhetoric and its broader cultural context.
Adrian Johns' Piracy: The Intellectual Property Wars from Gutenberg to Gates (2010) chronicles the tensions between authorized and unauthorized producers and distributors of ICCE (International Conference on Consumer Electronics) goods in British and American culture from the 160Os to the present. Johns' primary argument is that piracy, which he loosely defines as the unauthorized use or taking of works that are protected by one or more intellectual property regimes, is not new; instead it's a historical occurrence that is not unique to the digital environment we are experiencing today. Johns argues that the difference is the scope of what he calls "antipiracy" and the industry in "antipiracy," which he notes grew in the 1970s and 1980s.
However, these works and similar scholarship analyze metaphors and rhetoric without a thorough consideration of the political, social, and environmental conditions and thought processes that surround them and their use. Rarely do metaphors and rhetoric occur in a vacuum; instead, they often emanate from a particular point of view, a way of seeing the world that the speaker holds. (It is possible that a speaker can employ rhetoric disingenuously merely for political, economic, or other gain, but let's assume that this is not the case.) Any time rhetoric or metaphors are discussed, it is appropriate to delve further and explore the mindset, beliefs, and social, legal, and economic conditions that gave rise to such rhetoric, which requires historical and cultural examination.
In studying U.S. copyright law and policy since its 18th century inception, I believe that the construct of piracy has little to do with unauthorized "theft" or "taking" of another's creative "property." Instead, piracy is a mental framework through which copyright law's decision makers (traditionally, politicians and lobbyists from the information, creative, cultural, and entertainment industries) view the regime and its boundaries. I call this framework the "piracy paradigm."
The 'Piracy Paradigm'
The basic premise of the piracy paradigm is that piracy, as it relates to U.S. copyright law and policy, is more than a rhetorical or metaphorical trope that has led to certain policy and legislative outcomes. Piracy is a way of viewing and interpreting copyright and its role within American society. Consistent with the way a picture frame interprets, focuses on, and eliminates images, shapes, or colors to help shape a person's view of the world, the piracy paradigm focuses on certain issues and views the intersection of art, law, culture, and commerce exclusively within its borders. In its inclusion and exclusion, proponents and adherents of the piracy paradigm make judgments about what they believe to be the purpose and role of intellectual property (IP) rights and protection within American society.
I see the piracy paradigm as having four elements (property, commodity, technology, and emergency), with one element corresponding to each side of the frame. Property is the first element of the piracy paradigm. In the property element, works that are eligible for copyright protection also assume exclusionary and control characteristics similar to real or tangible personal property. The property element connects directly to the current fervent theoretical debate about whether copyright is a form of property (or, at the very least, represents a property right) and whether it matters if we call copyright property.
The piracy paradigm's second element is commodity, which holds that the commoditization and sale of works protected by copyright is expected. In an extreme form of the commodity element, there is no reason to produce creative works other than to sell them in a market. This second element connects to America's historical roots in entrepreneurism and mercantilism, the country's development of manufacturing techniques, and innovations that help improve production efficiencies. The recording industry provides a perfect example. In its evolution from sheet music to disc, the music industry actually has been more about the success companies have had in selling the containers within which music is embedded than it has been about the extent to which the actual artistic work is (or is not) worthwhile.
The third element of the piracy paradigm is technology, which manifests itself in two ways. First, a business buys, develops, and controls (physically or legally, through patents and licenses) technologies used to create cultural and creative works protected by copyright; it then uses those technologies to increase the efficient production of those goods. Again, the recording industry provides some great examples, since innovations repeatedly have allowed the industry to resell catalog works in new formats.
But just as a firm can use technology to enhance productivity, technology can also work against the producing firm. This is the second prong of the technology element: The firm does not use the technology to its benefit, but instead, it is challenged by it and the disruption it causes. The internet is a perfect example of how technology can disrupt incumbent business models, particularly where the industry's business models are predicated either on selling culture embedded in some container or using advertising to subsidize the free or low-cost transmission of cultural content.
Finally, there is the emergency element, which has manifested itself routinely throughout copyright's history. Industries and companies that make their money from licensing or selling works protected by copyright customarily seek legislative, legal, political, and economic solutions to the challenges it faces. Often, these are technologically based, including the radio, the home video recorder, the internet, or the photocopier. Each of these technologies has been perceived as a threat to incumbents in their respective copyright-based industries. The purported crisis that emerges from such a threat has historically resulted in the incumbents' demands for protective solutions. According to Jessica Litman in her book Digital Copyright (2001), those industries almost always have received the protective solutions they have sought, particularly in Congress.
Distinguishing Rhetoric From Paradigm
Each element works synergistically with parts of the others; no element is isolated. For example, there is overlap between the property and the commodity elements.
This is natural, given that both elements share the underlying presumption of exclusivity - that "sole and despotic dominion which one man claims and exercises over external things of the world, in total exclusion of the right of any other individual in the universe" - that William Blackstone references in his famous Commentaries on the Laws of England.
The paradigm manifests itself in simple and complex ways. I believe it is the piracy paradigm that led U.S. Vice President Joe Biden to claim that the act of so-called IP piracy is "theft. Clean and simple. It's smash and grab. It ain't no different than smashing a window at Tiffany's and grabbing [merchandise]."
At a policy level, the piracy paradigm is evident in the annual Special 301 process on copyright protection and enforcement and through the more recently established ritual of the U.S. Intellectual Property Enforcement Coordinator's (IPEC) annual report to the president on federal IP enforcement activities.
This process is mandated by the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act).
It may be natural to discuss U.S. copyright law and policy without talking about piracy, where one uses the term "piracy" to mean the theft of copyright-protected works. In this manner, piracy is merely rhetoric to evoke lawlessness, criminality, and lack of respect for property.
In contrast, I do not think we can have serious conversations about copyright law (or copyright reform) without analyzing the piracy paradigm as it outlines a mindset about what copyright is and the role it should play in contemporary American society and the economy. In my mind, the difference between rhetorical piracy and the framework of the piracy paradigm is important and substantial.
K. Matthew Dames (firstname.lastname@example.org) is the executive editor of Copycense (http://copycense.com) and Core Copyright (http://corecopyright.org). Send your comments about this column to email@example.com.…