Copyright Law

The Etymology of Piracy

By Copycense Editorial

In light of the U.S. Navy’s rescue of Capt. Richard Phillips on Easter, many news outlets understandably are interested in writing about piracy. Interestingly, some news outlets have raised an important question about “piracy” as a term: in light of the ongoing (and newly news-worthy) threat of violence at high sea, should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property?

Stephen J. Dubner, a co-author 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 substitutes. Dubner followed with a second post on April 17 to anoint “downlifting” as the linguistic successor to “piracy.” In the meantime, the Washington Post and The Guardian (UK) followed with their own takes on “piracy” language.

It seems each of these publications, however, may have been beaten to the punch by Jenny Kakasuleff and the Indianapolis Liberal Examiner. Kakasuleff’s post was the first we saw this year to question using “piracy” within the context of intellectual property, and the timeline on her post suggests she addressed this before Dubner by about 10 hours. Better yet, her lede is 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.”

Source: http://tinyurl.com/c3f3oc

Of course, regular Copycense readers have known for quite some time that we never use “piracy” as a proxy for IP theft. We wrote about this in these virtual pages in an April 2007 post entitled Dismantling the “Piracy” Frame. Today, we re-post some of that that writing:

“Since at least late 2005, Copycense assiduously has avoided using the word ?piracy? as a synonym for allegedly illegal uses of protected intellectual property. Since then, whenever the term has appeared in this publication, it usually appears in quotes (i.e. ?piracy?). There are several reasons for our care. First, since Copycense reports on the intersection of business, law, and technology, it is unusual that we would report on anything remotely related to ?acts of robbery and depredation upon the high seas.?

“Second, as we have shown here, the term ?piracy? has nothing to do with copyright or any other form of intellectual property, much less the allegedly illegal taking of such material. Any use of the term piracy that relates to intellectual property is wrong or an overt linguistic manipulation for political or economic advantage. We?ll concede the entertainment industry?s ?piracy? frame has been artful and successful. We also know that it is wrong.

“Third, perpetuating the ?piracy? frame pigeonholes intellectual property dialogue into a narrow box that considers only an owners? rights. All intellectual property law is a delicate balance between the rights of the owner author, or inventor, and the public interest. In copyright law, for example, an owner?s exclusive rights generally are outlined in Sections 106 and 106A, while the public policy-oriented limitations (or exceptions) to those exclusive rights generally are codified in Sections 107 through 122.

…

“[Several publications and organizations … reinforce] the ?piracy? frame through [their] reporting. The New York Times, The Wall Street Journal, The Washington Post are among them, and they continue to do so even though their coverage over the last 18 months increasingly has been critical of the entertainment industry, their lobbyists, and the overtly protectionist copyright laws those groups are responsible for proposing and ramming through a Congress that has been ignorant about the frame, too weak to stop it, or complicit in accepting it without the mildest investigation.

“But at some point the ?piracy? frame must be uncovered for what it is: public relations blather. It is sexy, simple, and concededly well-designed blather, but blather nevertheless. We have committed to avoid using ?piracy? except where such use is consistent with its definition (which means we will not have much need to use it at all). Instead of ?piracy,? we call on journalists, editors, and bloggers to use the phrase ?alleged infringement.? Unlike ?piracy,? the phrase ?alleged infringement? is legally accurate, simple, and suggests that accusations of unsanctioned use of copyrighted materials are subject to exceptions and a legal process by which a judge or jury may or may not hold the accused liable for infringement or damages.”

Source: http://www.copycense.com/2007/04/dismantling_the.html

As it turns out, Copycense executive editor K. Matthew Dames has been studying the intersection of framing, law, and policy extensively for more than two years. In addition to the aforementioned Copycense post, Dames first addressed framing in a September 2006 article published in Information Today magazine, and presented a paper about the meanings of piracy in September 2008 at Syracuse University. He has updated the 2008 paper, which is part of a broader study he is conducting on framing, rhetoric, and U.S. copyright policy, and it is now available on SSRN.

Finally, to answer Dubner’s question, instead of “piracy,” why don’t we call these things what they are: allegations of copyright infringement?

Related:

• K. Matthew Dames. The Framing of “Piracy”: Etymology, Lobbying & Policy. SSRN. April 21, 2009.
• Copycense. Dismantling the “Piracy” Frame. April 18, 2007.
• K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

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Technorati Tags: Copycense, framing & rhetoric, K. Matthew Dames, tag

Full post as published by Copycense on April 21, 2009 (boomark / email).