Saturday, April 25, 2009

'Piracy' as copyright infringement: nothing new under the sun

Up until a few months ago, life was pretty simple: when I saw a headline referring to "piracy" or "pirates," I could be pretty sure it was an article about copyright that I'd want to read. No longer. Now, of course, those articles could just as well be chronicling the return the other kind of pirates: you know, the guys with guns who take ships by force.

Which got me thinking: where does the use of "piracy" to refer to copyright infringement come from? Was the term appropriated from the "ay, matey" pirates in a secret 1999 meeting of RIAA flacks, as they girded for battle with Napster? Hardly. When I started looking into it, I was somewhat surprised to learn that "piracy" has been used as a synonym (or near-synonym) for copyright infringement for about 350 years. In his exhaustive etymological study of the terms "piracy" and "intellectual property," Professor Justin Hughes of Cardozo Law School traces the equation of "piracy" with infringement to an English bishop named John Fell, who lived 1625-1686. Explains Hughes (page 1009):
It is worth noting that during this pre-Statute of Anne period, “piracy” was widely used to describe unauthorized printing of books. Adrian Johns traces “piracy” as a description of unauthorized copying to John Fell, the Bishop of Oxford who resuscitated the fledgling Oxford University Press after the Restoration. According to Johns’s exhaustive study of book publishing in England, The Nature of the Book, piracy had a “technical meaning” in the seventeenth century: “a pirate was someone who indulged in the unauthorized reprinting of a title recognized to belong to someone else by the formal conventions of the printing and bookselling community.” Beyond this technical meaning, piracy “soon came to stand for a wide range of perceived transgressions of civility emanating from print’s practitioners.”
(footnotes omitted; links mine). The first use of "piracy" in this sense by a court was apparently a 1798 English decision called Beckford v. Hood; the first example noted by Hughes in the US was Moody v. Fiske, 17 F. Cas. 655, 656–57 (C.C.D. Mass. 1820) (patent case). Writes Hughes (page 1043):
In the nineteenth century and the first half of the twentieth century, there is a rich history of American courts and commentators referring to all kinds of copyright infringement as “piracy.” The broad usage of the word “piracy” shows that it was generally equated with infringement: there seemed to be no requirement either that the infringement be a “nontransformative” use or that the infringement entail reproduction and distribution on a massive scale.
And Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) -- generally considered the first fair use case (it found that the defense didn't apply, by the way) -- refers to "piracy" as well.

The Hughes article -- Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. Cal. L. Rev. 993 (2006) -- also traces the origins of the term "intellectual property." That phrase appears in legal usage no later than the mid-1800s, and "property" was used in the original title of the bill that became 1710's Statute of Anne. For a more concise treatment of the etymology of "piracy," see K. Matthew Dames, The Framing of 'Piracy': Etymology, Lobbying & Policy (2009).

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