Why the Frame of 'Piracy' Matters

Article excerpt

Since the U.S. Navy rescued Capt. Richard Phillips in April, many news outlets have been writing about piracy. Interestingly, some news outlets have raised an important question about "piracy" as a term: In light of the ongoing (and newly newsworthy) threat of violence on the high seas, should "piracy" continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?

Stephen J. Dubner, a coauthor 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. …