What is piracy? When used to describe copyright infringement, the term causes a lot of debate.

Some say the term is inaccurate, since “piracy” only describes sea-faring buccaneers of the “Aaargh, matey” type. 1Richard Stallman, 21 Words to Avoid (1996). Others suggest it is inappropriate when applied to anything but large-scale, commercial counterfeiting of copyrighted works — an effort to invoke negative connotations of all unauthorized uses of copyrighted works in order to increase the scope of laws and enforcement in favor of copyright holders. 2William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).

Even setting aside these arguments, debate remains over the meaning of the term. Is all copyright infringement piracy? Or does it only refer to specific types of copyright infringement?

This post isn’t about addressing the arguments about the term or coming to a settled definition of the word — not to say either is unimportant or not interesting. Instead, I want to focus only on how I use the term on this site. Words are important, and I use the term piracy quite frequently here, so I want to clarify what I mean when I use it and why I use it that way.

I use “piracy” to refer to a subset of copyright infringement, specifically, the widespread reproduction and distribution of exact copies of an entire work without authorization. In this sense, the term is merely shorthand since I write a lot about the issues revolving around this type of infringement. Put another way, my use is descriptive rather than normative. This definition reflects how the term is commonly used today — I’ll leave to others the question of whether this definition reflects how the term should be used.

Historical Usage

“Pirate” comes from the latin Pirata, meaning “sailor” or “sea robber,” which itself comes from the Greek peirates, “brigand.” 3Pirate“, Online Etymology Dictionary. Since the time of the Ancient Greeks, the term has been used to describe those who plunder at sea.

The term “piracy” began to be applied to the plundering of intellectual property around the mid-1600s — give or take a few decades, depending on who you ask. 4Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.

The earliest appearances of the term, pre-dating the Statute of Anne and our modern idea of copyright, used it more to describe personal plagiary — the passing off of another’s work as one’s own — then the unauthorized reproduction of a work. It’s interesting to note that the term “plagiarism” itself comes from the classical Latin term plagiarius, meaning “kidnapper, seducer, plunderer.” 5Plagiarism,” Online Etymology Dictionary. By the 18th century, “piracy” was being used to describe copyright infringement. 6It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.

Indeed, in the early 19th century, the two terms were often used interchangeably. In Cary v. Kearsley, an 1803 English case that serves as a sort of godfather to the modern U.S. doctrine of fair use, the court explained, “That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another’s labours for the promotion of science, and the benefit of the public.” 74 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).

Justice Story also used the term piracy as a synonym of copyright infringement. In Folsom v. Marsh, he refers to “the question of piracy” where today a court would refer to the question of copyright infringement. 89 F. Cas 342 (1841). Likewise, in Emerson v. Davies, he wrote, “The question is, whether the latter work is a piracy upon any part of the former work, which the author of that work had a right to claim as his own property, in respect that it was his own composition.” 98 F. Cas. 615 (Cir. Ct D. Mass 1845).

Current Usage

Nowadays, the scope of the term has been narrowed; most courts, scholars, and commentators use piracy to refer to only a specific type of copyright infringement rather than all infringement. 10Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”

The Supreme Court in Goldstein v. California explained that the petitioners were engaged in “what has commonly been called “record piracy” or “tape piracy”—the unauthorized duplication of recordings of performances by major musical artists.” 11412 US 546, 549 (1973). Though a patent case, the Court in Graver v. Linde implied that pirating a copyrighted work is an act of “unscrupulous” copying, where any variations are made not out of a creative nature, but only to “conceal and shelter the piracy.” 12339 US 605, 607 (1950).

Many scholars adopt the same definition as courts. Mark Lemley and Eugene Volokh talk about “outright piracy” as those cases where a defendant makes “identical or nearly identical copies” of a protected work, “and there is no claim of fair use.” 13Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998). Law professor Michael J. Meurer defines piracy as “the unauthorized public distribution of literal copies of a copyrighted work,” making a pirate, in the economic sense, “a competing supplier of the copyright holder.” 14Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).

While “piracy” is not a legal term, it has been used descriptively by Congress when holding hearings or passing legislation. The law making certain types of copyright infringement a felony was called the Piracy and Counterfeiting Amendments Act of 1982. 15PL 97-180, 96 Stat 91, 93. The infringement covered by the act must be both willful and “for purposes of commercial advantage or private financial gain” — with higher penalties for the unauthorized reproduction and distribution of multiple copies.

Industry groups also limit the scope of what types of infringement are defined as piracy. The RIAA describes some of the forms piracy can take on its website: “individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores.” The IFPI, in discussing online piracy, is referring only to file-sharing type activities.

Based on these (and many other) examples, I think my definition of piracy fairly represents the commonly accepted usage of the term.

References   [ + ]

1. Richard Stallman, 21 Words to Avoid (1996).
2. William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).
3. Pirate“, Online Etymology Dictionary.
4. Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.
5. Plagiarism,” Online Etymology Dictionary.
6. It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.
7. 4 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).
8. 9 F. Cas 342 (1841).
9. 8 F. Cas. 615 (Cir. Ct D. Mass 1845).
10. Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”
11. 412 US 546, 549 (1973).
12. 339 US 605, 607 (1950).
13. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998).
14. Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).
15. PL 97-180, 96 Stat 91, 93.

14 Comments

  1. Terry,

    You had me convinced until the very end when you used the RIAA to help justify your definition of piracy. That’s like asking a fox to help setup the security around the hen house. Or asking me how much I should pay in taxes.

    Randy — poorchoice

    • Randy,

      My definition is based on what I think is the commonly accepted use of the word. I think it’s safe to say that content industry groups like the RIAA are regular users of the word, so I think it’s helpful to see how they use the word.

      • Terry,

        I think then you should also ask Joel Tenenbaum what his definition is.

        My point is that it certainly seems one sided.

        Randy

  2. I have always found it useful to associate piracy with consumptive uses, and not with respect to transformative uses. The former substitutes one unchanged copy for another, whereas the latter does not.

    • I agree. In fact, as a participant in transformative arts, I bristle when I hear arguments for Fair Use in creative endeavors co-opted to justify outright unauthorized copying and distribution of an artist/author’s work.

      The site which shall not be named (that I do often agree with) particularly ticked me off in this regard when it recently started claiming sample-based music as a sort of justification for piracy, even though I’ve never heard anyone lump these two acts together in serious discourse. Not even the RIAA considers transformative use a form of piracy, as far as I know. Not that they or the record labels don’t want money for it or that they don’t sue over it, but even they don’t lump, let’s say hip hop producers or sample-crazed DJs, in with so-called “pirates”.

      Most of the transformative artists I know are huge proponents of IP. Hell, we even like the bloated, bland mainstream level of art; it gives us the fodder and ammunition we need for our craft! We spend a great deal of time immersed in the works of others and have profound respect for the artists that came before us. The last thing I want is for other musicians to struggle putting out decent, well-recorded music because what would I have to sample then?

      Thanks for writing the article, Terry. As musician who struggles every day with these moral issues of the digital landscape it’s nice to read something a little more coherent and researched than the typical cherry-picked blogosphere nonsense.

      • “… ticked me off in this regard when it recently started claiming sample-based music as a sort of justification for piracy, even though I’ve never heard anyone lump these two acts together in serious discourse.”

        Grey Album

        Also, jazz music where transformative use is barred from adding to songs.

        “Most of the transformative artists I know are huge proponents of IP”

        I haven’t heard of too many artists that are huge in IP law. Who would they be?

  3. In Sweden, the home of “the Pirate Bay”, the definition has become somewhat broader that that. Even though “the pirate bay” is just about downloading files, the concept of piracy means a lot more.

    For instance: One of the big book publishing companies in Sweden is called “Piratförlaget” (“The pirate publisher”). They are obviously not into copyright infringement, but the word “pirate” only reflects that they are independent from the big labels. They claim that other publishers don’t give enough to the writers. They always do 50/50 splits.

    The political party “Piratpartiet” (“The pirate party”) who got 2 seats in the European parliament from Sweden, also have a broader definition. To them “piracy” is about the freedom of information, but also the right to privacy online and transparency of state administration. I’m not a pirate, but in Sweden, being a “pirate” is politicly correct and does not mean that you’re a criminal. Even in the press, I might add.

    To me it’s just stupid. I’ve often asked pirates why they use that term to describe themselves. To me it’s like calling yourself a criminal and then claiming your not a criminal, cause you don’t like the general definition of the word “criminal”. But they obviously don’t think so.

    If a Swedish pirate could enlighten us all, right here, in what the term means for them it would be very much appreciated. 🙂

  4. Just as a bit of light relief, see this, around 1m30s in:
    http://www.youtube.com/watch?v=JEle_DLDg9Y

  5. I have been using the word Looting more frequently these days to describe the thing you define in your post. I see this phenomenon as part of a human reaction when so many felt oppressed by big bad corporate America. The anarchists who lead the revolution were disgruntled with big business’s hold on the free flow of “information” which translated into music as their focus became all copyrighted works and the law that gives it legitimacy. The masses conveniently jumped on the band wagon like looters have historically done in times of revolution. I better understand their view points now having debated this issue with many of their talking heads in person. I personally believe they are throwing the baby out with the bath water and some are beginning to soften their stance as they realize a need to compensate creators of things whose value has a foundation in copyright law. Interesting times.

  6. Here is an excellent perspective on the issue:

    http://www.youtube.com/watch?v=cvYhhaXgnog

  7. I don’t think the problem is so much how you define the word ‘piracy’, but rather how the public defines it. I believe when most people hear the word ‘pirate’ they get one of two images in their mind. Most often, I think they see cute, lovable Johnny Depp from the Disney Pirate movies, and they think, “How bad can they be.” On the other end of the spectrum, they may see Somali pirates who murder middle age couples on their boats, and they don’t see any relation to people passing files around on the Internet.

    When you come down to it, ‘piracy’ is just a euphemism and not a very accurate one. Let’s call it what it is, theft. These people aren’t pirates, they are thieves. Let’s stop dancing around the subject, and call them what they are.

    I too have spent some time with these people, in my case online. For all the anger and vitriol they spew at the RIAA and MPAA, it is just a smoke screen. They want free music and movies and they need to justify to themselves and others why it isn’t wrong. Their ability to rationalize their actions is surpassed only by their ignorance of copyright law.

    • JJ, you’re incorrect. Infringement and piracy should be dealt with differently.

      The problem with organizations such as the MPAA and RIAA is in the central distribution model that has worked quite well for them before the advent of the internet. It’s rather funny that the MPAA and RIAA are trade groups that make nothing so are quite disconnected from the process of why people rail against them.

      I’m assuming from other conversations we’ve had, you have yet to read about the new SSRC book that actually goes into great detail about price points, economics, and how exactly to deal with this supposed piracy. It also compares the US enforcement policy to others around the world and what is actually happening as a result. Regardless, the moral convictions encoded into copyright law will not stop the problems you seem to believe that “piracy” brings up.

      What is happening is that the trade industries are losing control. I will say that given enough time, a lot more independent film makers and song writers will forgo such trade industry groups because their incentives are far different from the ones of actual creators. On multiple occasions, I bring up examples of those that are either ignoring the MPAA or RIAA and their crazy methods or going the independent route to find their own paths to success. I think it’s time to seek out far more alternatives than believe that things such as COICA, ex parte seizures, and ex officio police powers will truly bring about a supposed return of profits for affected industries.

      • Jay, Did you read anything I wrote on the other site? Did you read the comment you replied to? Attacks on the RIAA and MPAA are a bunch of smoke and mirrors to distract from the subject at hand. I don’t care if both groups disappeared tomorrow. It would not change the arguments I have been making.

        Downloading copyrighted material is theft. By definition, a copyright is literally the right to make copies. This means the original file belongs to copyright holder as well as all copies made from the original and all copies made from other copies. They all belong to the copyright holder because that is what copyright means. If you make a copy off of a P2P site, that copy doesn’t belong to you. It belongs to the copyright owner. By taking it without permission or compensation, you are stealing it. The RIAA and MPAA have nothing to do with this simple fact. It is backed up by the copyright law, the US Constitution, and numerous international treaties. Do you get it now?

        Just for future reference, if you are going to provide a link, it should generally be to an authoritative source, not to someone who doesn’t even believe that IP exists. Arguing against the existence of IP is kind of like belonging to the Flat Earth Society. It is quaint, but not very realistic.

        • That was a link to a picture for a shot at humor. It doesn’t detract from the argument that there is a difference in a digital good and a tangible good. I didn’t read the site, just saw the picture.

          What you seem to argue is copying somehow takes away in quite a few regards. Here’s the main forms of entertainment and their respective “in the light” industry heads and what they’re currently doing in regards to copyright:

          Righthaven – copying articles is bad therefore we must sue. (Fair Use is hitting them hard right now)
          RIAA – copying a song is bad therefore we tried to sue (2008)
          MPAA – copying a movie is bad therefore we must sue (trying to pass COICA)

          Games are somewhat more free form but even they have DRM (which is usually figured out quickly and/or patched out with unauthorized versions). These are the big forms and in a sense, encompass your argument and what’s bad with it. It treats the artists as if they’re sancrosanct. They’re not and neither is the fact that if I don’t want to, I don’t have to spend money on certain artists (Example only!).

          What I find questionable about your arguments is that you seem to think that more legislation will somehow fix this. As I said, that’s very difficult to comprehend because there’s more to it.

          And the copyright statute doesn’t measure up to the 1st, 4th, and 5th Amendments. The copyright clause said a limited time (which you seem to ignore with the absolutism) and if anything, the original clause was only for 14 years. Somehow, call it a hunch, but 70 years + 50 after death is not very limited…

          I’m aware of the Berne Convention, and also aware of the secrecy guarding the process of ACTA. I’m aware that a treaty is supposed to be ratified by Congress. Funny how you seem to believe what people do in Myanmar, should also be binding here in the US and vice versa…

          That’s actually taking away from your argument by not understanding why copyright law is becoming less and less respected in the digital world.

          Your argument detracts by not allowing derivative works of any sort nor do they allow transformative use. Those help to the betterment of society. The sheet music of Beethoven or Bach helps to teach children how to play better. Me reading a book into a voice recorder won’t hurt a publisher’s bottom line.

          And even though P2P is vilified, the music and movie industry have increased.

          Overall, there are more musicians and artists that seem to be saying “to hell with copyright” than there are people who believe copyright can be used to change behavior.

          I have my alternatives to copyright holders. The question that you should be asking: If the owner of a copyright decides to try to sue me for statutory damages (which is really egregious for noncommercial infringement) then why is it that law doesn’t seem to be able to change that behavior? I believe you’ll actually find some of the answers here rather than a belief in enforcement.