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 1600s 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. …