COPYCENSE

Our intrepid guest editor Kim Hagedorn came across the following story from ArsTechnica last week about the film lobby launching an RIAA-styled litigation and legislation effort to help stamp out allegedly widespread and purportedly economically damaging “piracy.” Initially, we positioned this article for our weekly edition of Clippings. Instead, we decided to do a separate post on the issue.

We debated whether or not to comment on this story, even though it was reported by ArsTechnica (an outlet whose reporting we greatly respect), because it perpetuates an ongoing public relations frame about the word “piracy.” Ulitmately, we chose to comment on the ArsTechnica post to clarify and dismantle the frame.

Black’s Law Dictionary (centennial edition, 1990), which lawyers consider the standard for legal definition and terminology, defines “piracy” as:

Those acts of robbery and depredation upon the high seas, which if committed on land, would have amounted to a felony. Brigandage committed on the sea or from the sea.

(In the same edition of Black’s, “brigandage” is defined as “robbery and banditry as perpetuated by a band of robbers or brigands; plundering and outlawry.”)

Under the piracy definition, Black’s also includes a reference to a provision of the U.S. Code, the official codification of American federal law, entitled “Piracy under law of nations.” According to this section of the U.S. Code, the crime of piracy has a steep penalty:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Following the “piracy” entry in Black’s to completion, the editors write:

The term is also applied to the illegal reprinting or reproduction of copyrighted matter or to unlawful plagiarism from it; and, similarly, to the unlawful reproduction or distribution of property protected by patent and trademark laws. (Emphasis supplied.)

In summary, piracy is felonious theft on the open seas. Its true meaning has nothing to do with copyright infringement, major or minor, real or imagined, actual or alleged. Through the implementation of a public relations campaign that for nearly two decades has been alternately artful, efficient, and dogged, the entertainment industries’ lobbying groups (which include the Motion Picture Association of America and the Recording Industry Association of America) have manipulated the meaning of “piracy” so that “the term is also applied” as a synonym for copyright infringement.

(As an aside, we were surprised to see that a 1990 edition of Black’s tacitly acknowledges the “piracy” frame, meaning the public relations campaign about “piracy” now is in its 17th year.)

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.

Viewed another way, the Copyright Act of 1976 generally is constructed in a way that provides two sections for owner’s rights, and 16 sections for exceptions to and limitations on those rights. The “piracy” frame does not allow consideration of that 16 to 2 ratio, nor does it consider the dozens of situations in which people or organizations can use copyrighted works for free, and without requiring the copyright owner’s permission.

ArsTechnica is not alone in reinforcing the “piracy” frame through its reporting; several publications and organizations do it. 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.

ArsTechnica. MPAA Names Its Top 25 Movie Piracy Schools. April 2, 2007.

See also:

K. Matthew Dames. “Framing the Copyright Debate.” Information Today. September 2006. Page 22.

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