Piracy

The Intellectual Property Wars from Gutenberg to Gates

Adrian Johns

• Publisher: University of Chicago Press
• Year: 2010
• ISBN:
  9780226401201
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Since the rise of Napster and other file-sharing services in its wake, most of us have assumed that intellectual piracy is a product of the digital age and that it threatens creative expression as never before. The Motion Picture Association of America, for instance, claimed that in 2005 the film industry lost $2.3 billion in revenue to piracy online. But here Adrian Johns shows that piracy has a much longer and more vital history than we have realized—one that has been largely forgotten and is little understood.

Piracy explores the intellectual property wars from the advent of print culture in the fifteenth century to the reign of the Internet in the twenty-first. Brimming with broader implications for today's debates over open access, fair use, free culture, and the like, Johns's book ultimately argues that piracy has always stood at the center of our attempts to reconcile creativity and commerce—and that piracy has been an engine of social, technological, and intellectual innovations as often as it has been their adversary. From Cervantes to Sonny Bono, from Maria Callas to Microsoft, from Grub Street to Google, no chapter in the story of piracy evades Johns's graceful analysis in what will be the definitive history of the subject for years to come.

1

A General History of the Pirates

In mid-2004, executives at the Tokyo headquarters of the huge electronics multinational NEC began to hear reports that its products were being counterfeited and sold in Chinese stores. Nobody was at all surprised. Reports of this kind were routine for any corporation of NEC’s size and reach, and in this case they initially seemed to concern small stuff—blank DVDs and the like. The company nevertheless moved swiftly to put into action its standard response in such cases, hiring a firm called International Risk to look into the matter. There was no reason to suspect that this would prove to be anything more than yet another incident like all the others—irritating, no doubt, but impossible to suppress entirely. Piracy of this kind was the unavoidable price of doing business on a global scale.

Two years, half a dozen countries, and several continents later, what International Risk had unveiled shocked even the most jaded experts in today’s industrial shenanigans. They revealed not just a few streetwise DVD pirates, but an entire parallel NEC organization. As the real company’s senior vice president ruefully remarked, the pirates had “attempted to completely assume the NEC brand.” Their version, like the original, was multinational and highly professional. Its agents carried business cards. They were even recruited publicly by what looked like legitimate advertising.¹ The piratical firm had not only replicated existing NEC goods, but actively invested in research and development to devise its own. Over time, it had produced an entire range of consumer products, from MP3 players to lavish home theater systems. These goods were of high quality, with warranties emulating NEC’s own (in fact, the conspiracy came to light only when users tried to exercise their warranty rights by contacting NEC). To manufacture them the impostor multinational had signed royalty arrangements with more than fifty businesses scattered through China, Hong Kong, and Taiwan, at least some of which seemed to believe they were working for the real NEC. And it had developed its own sophisticated distribution networks, allowing its products to reach a global market extending at least as far as Africa and Europe. If this was indeed, as the international press called it, the “next step in pirating,” then it was a very dramatic and impressive step indeed.²

When news of the pirate NEC broke in mid-2006, the story quickly winged its way across the Internet. Readers and commentators in the blogosphere reproduced the original press reports many times over. They expressed dismay at the implications. But their dismay was often accompanied by a drop of schadenfreude. Now, they realized, none of them could really be confident that the “NEC” disk drives, chips, screens, or keyboards on which they were doing their blogging were what they claimed to be. Some found this ominous, because of what it implied about knowledge in general in the networked world. Others acknowledged those implications but were only too happy to profess that they found them appealing: here was a gigantic corporation coming a cropper at the hands of unbranded outlaws who had proved themselves faster, nimbler, smarter. The Net’s echo-chamber amplified the incident into a symbol of every cultural fear, epistemic doubt, and libertarian dream suggested by the digital age. Here, it seemed, was a glimpse of where everyday menaces like phishing and identity theft were inexorably leading.

This case of a doppelgänger multinational does indeed seem to mark some kind of culmination. It is hard to imagine a more spectacular act of piracy, unless perhaps one could conjure up a fake World Intellectual Property Organization. And in fact the venture came to light almost exactly on cue, just as impersonation of this kind had been identified as a growing piratical trend, set to succeed hacking and pharming as the mode of digital banditry du jour. “Brandjacking,” it was called. It had even been singled out as a looming problem by the CEO of International Risk—who, not coincidentally, was a longtime veteran of the Hong Kong police experienced in tackling human kidnappings. Such piracy, he had cautioned in public speeches, was fast becoming a fact of life for the electronics and pharmaceuticals industries, with a recognizable modus operandi. An episode generally began when a legitimate company licensed a factory to manufacture its goods; the brandjackers who stood behind the factory would then take the documentation involved in the license, duplicate it, and redeploy it in order to recruit other plants. These other operations often remained blissfully unaware that they were dealing with impostors. After all, the outlaws helped themselves to the very devices—affidavits, bills, forms, contracts—that are supposed to guarantee legitimacy in modern capitalism. Especially hard to fight were brandjackers who operated across national boundaries, particularly the strait separating Taiwan from mainland China. The authorities in the People’s Republic might well prove reluctant to prosecute local businesses that could plausibly claim to be acting in innocence. All of these vulnerabilities were exploited to the full by NEC’s evil twin.³

NEC’s discomfiting experience throws into sharp relief the sheer range of phenomena that fall under the term “piracy” as it is nowadays used. They extend far beyond the piecemeal purloining of intellectual property. They reach, in fact, to the defining elements of modern culture itself: to science and technology; to authorship, authenticity, and credibility; to policing and politics; to the premises on which economic activity and social order rest. That is why the topic of piracy causes the anxiety that it so evidently does. Ours is supposed to be an age of information—even of an information revolution. Yet it suddenly seems as though enemies of intellectual property are swarming everywhere, and the ground rules for an information economy are nowhere secure. Universities find themselves havens for countless devotees of file-sharing software, making blithe use of services that the recording industry condemns flatly as piracy. Biotechnology companies, testing genetically modified organisms in Indian cotton fields, accuse local farmers of being “seed pirates” when they use part of one year’s crop as seed for the next. And Hollywood executives make front-page headlines when their companies join forces to sell movies online, having been spurred into rare cooperation by their mutual fear of losing control of their intellectual property. So serious has the prospect of piracy become for them that in the United States the Digital Millennium Copyright Act has even outlawed the promulgation of algorithms that might be used to disable or circumvent copy-protection devices. A graduate student coming to Nevada to present a technical paper can be arrested, not for pirating anything himself, but for divulging principles that might allow others to do so. In today’s global economy, there are not just pirate books, CDs, and videos, but pirate jeans, pirate motorcycles, pirate pharmaceuticals, pirate aircraft parts, and, of course, pirate Pokemon. One recent novel mischievously imagines the ruin of the entire U.S. economy after the source code of major proprietary software is released en masse onto the Net. “The Chinese never liked ‘intellectual property,’” explains a Nobel laureate scientist in 2044, and they eventually “called our bluff.” “So now, thanks to the Chinese, basic science has lost its economic underpinnings. We have to live on pure prestige now, and that’s a very thin way to live.”⁴

Implicit in that resigned lament is a recognition that information has indeed become a principal foundation of modern social, economic, and cultural order. As it has become the key commodity in the globalized economy, so control and management of information have vastly increased in overt importance. In the nineteenth century, manufacturing held the key to economic power; for much of the twentieth, energy occupied that position. Now knowledge and imaginative creativity seem to be challenging for primacy. Piracy is the biggest threat in this emerging economic order, and it is commonly represented as the biggest threat to it. A specter is haunting Europe, as a latter-day Engels might have written. Only it is not just Europe that is spooked, but the entire economic world; and the ghost looming before us is not a communist, but a pirate.⁵

Yet the problem is even thornier than that may imply, because it is not reducible to any kind of informational class war. The pirates, in all too many cases, are not alienated proles. Nor do they represent some comfortingly distinct outsider. They are us. Biotechnology companies certainly complain about seed piracy, for example—but also find themselves confronted by protests at their own alleged “biopiracy.” The same charge is liberally hurled at high-tech “pharmers” in the West—the word here referring not to unscrupulous forgers of Web sites but to highly credentialed bioscientists and ethnobotanists traversing the tropics in their search for new medicines. In such cases, the institutions of scientific and medical research on which we depend are being denounced as pirates not for destroying intellectual property, but precisely for introducing it to places where it did not previously exist. It sometimes seems that there is only one charge that all players in the globalization game, from radical environmentalists to officials of the World Trade Organization, level at their respective foes, and that charge is piracy. Marking the repudiation of information capitalism at one extreme and its consummation at the other, it has become the definitive transgression of the information age.

This makes piracy a compelling subject as well as an attractive one. Its consequences extend beyond particular cases, and beyond even the law itself, to impinge on the basic ways in which ideas and technologies are created, distributed, and used. Conflicts over piracy involve strongly held ideals of authorship, creativity, and reception. Society can therefore find itself forced to articulate and defend those ideals, and sometimes to adjust or abandon them. That is the common thread that ties together all our most important piracy debates, whether the specific allegations relate to gene patents, software, proprietary drugs, books, ballet steps, or digital downloading. What is at stake, in the end, is the nature of the relationship we want to uphold between creativity, communication, and commerce. And the history of piracy constitutes a centuries-long series of conflicts—extending back by some criteria to the origins of recorded civilization itself—that have shaped this relationship. Those conflicts challenged assumptions of authenticity and required active measures to secure it. They provoked reappraisals of creative authorship and its prerogatives. They demanded that customs of reception be stipulated and enforced. Above all, they forced contemporaries to articulate the properties and powers of communications technologies themselves—the printing press, the steam press, radio, television, and, now, the Internet.

Yet setting out to rescue the history of piracy from obscurity may still seem a quixotic quest. While its present and future receive daily attention in the mass media, its past remains almost completely veiled. To be sure, a few isolated episodes are cited repeatedly: Charles Dickens haranguing American publishers for reprinting his novels; Hamlet answering his own question, “To be or not to be,” with the phrase “Aye, there’s the point” in an unauthorized quarto of Shakespeare’s play; Alexander Pope assailing the Grub Street bookseller Edmund Curll for helping himself to Pope’s letters. But these tend to be offered up as whimsical anticipations of our current predicament, or else as reassuring evidence that there is nothing new under the sun. The big questions—where piracy came from, how it developed and changed over time, what its consequences have been—have never been properly asked, let alone answered.

There are two reasons for this. The first derives from received opinions about the digital and biomedical advances that are taking place all around us. Ours is routinely invoked as a moment of radical transformation—an information revolution that constitutes a clean break from all that has gone before. Therefore, if piracy is the definitive transgression of this moment, it too should be a phenomenon without a past. It could have a prehistory, but not a history. The most that one could expect to find in earlier periods would be episodes resembling modern practices in some charming but in the end inconsequential way. And so this is indeed all that we have found. The second reason bolsters this by supplying a rationale: that piracy is not really a subject at all. To jurists and policymakers in particular—but the impression is widely shared—it has a derivative status. It simply reflects the rise of intellectual property. To look for its history would be, on this assumption, futile in principle. The real subject would be intellectual property itself, and more specifically intellectual property law. That alone could have a real history to excavate.

To be blunt, these assumptions are false in fact and iniquitous in their consequences. Piracy is not peculiar to the digital revolution—a revolution that is in any case pervaded by historical inheritances. Nor is it a mere accessory to the development of legal doctrine. Yet neither is it an offense of timeless character, universally definable by a priori criteria. It is far richer and trickier than that. It has its own historical continuities and discontinuities, and its own historical consequences. The relation of piracy to doctrines of intellectual property, in particular, must clearly be a close one; but piracy cannot be adequately described, let alone explained, as a mere byproduct of such doctrines. It is empirically true that the law of what we now call intellectual property has often lagged behind piratical practices, and indeed that virtually all its central principles, such as copyright, were developed in response to piracy. To assume that piracy merely derives from legal doctrine is to get the history—and therefore the politics, and much else besides—back to front.

Granted that the subject exists, a problem of definition still dogs it. What is piracy? It is not entirely clear that we agree on the answer. An official study for the European Union once defined it rather impishly as whatever the knowledge industries said they needed protection from.⁶ There is a certain logic to that, as will become clear, and in the end it may even be the most adequate definition we can get; but it will scarcely do as a starting point. Nor, however, will the standard definition of piracy as the commercial violation of legally sanctioned intellectual property. This too falls short, because (unless we embrace a very wide notion of intellectual property indeed) it would exclude many instances in which piracy has been recognized to be going on, but where intellectual property per se is not at issue. The very concept of intellectual property did not really exist until the mid-nineteenth century, by which point there had been over 150 years of denunciations of “piracy.”⁷ Even after that, there are many cases where too strict a definition in these terms would be prejudicial. One example concerns buses. In London, independent bus operators date back at least to the tourism boom that accompanied the Great Exhibition of 1851. Their vehicles were soon popularly termed “pirate” buses; a music-hall song called The pirate bus was popular for a while in the late Victorian era. They remained a presence on the city’s streets beyond World War II.⁸ Only by stretching the term “intellectual property” to breaking point could a pirate bus fit the orthodox definition. To exclude such usages, however, would rob us of the opportunity to consider what pirate buses had in common with pirate radio, pirate publishing, and pirate listening—three other kinds of piracy that were also popularly recognized in the period, and which we shall encounter later. By the same token, a doctrinaire definition might actually force us to count as piratical certain instances of expropriation that contemporaries did not identify in this way. An obvious example would be America’s wholesale redistribution of foreign companies’ patents (those of allies as well as the defeated Germans) after World War I. The legality of this hugely important move was unclear, but few in the United States, at least, would have called it piracy.

This is an apparent problem that can be turned to real advantage. It is certainly true that the nature of piracy has changed over time. For that reason, we need to respect its historical meanings rather than imposing its current one on our ancestors. Accordingly, some person, thing, or act has to have been characterized as piratical by contemporaries themselves in order for it to count as such in this book. But at the same time, we cannot simply take such characterizations at face value. Those who were called pirates almost never did: they always repudiated the label as inaccurate and unjust. The point is that when they did so, they often triggered debates that threw light on major structural issues and had major consequences as a result. We can profit by focusing on precisely these contests—and the more prolonged, variegated, and ferocious they were, the better. They strained relations between creativity and commercial life, and at critical moments caused them to be reconstituted. The history of piracy is the history of those transformations. Every time we ourselves buy a book, download a file, or listen to a radio show, our actions rest on it.

PIRACY AND THE PRINTING REVOLUTION

The period of time that we need to traverse is a long one, but it is not indefinitely long. For although appropriators of ideas may always have existed, societies have not always recognized a specific concept of intellectual piracy. Far from being timeless, that concept is in fact not even ancient. It arose in the context of Western Europe in the early modern period—the years of religious and political upheaval surrounding the Reformation and the scientific revolution. In particular, it owed its origin to the cultural transformations set in train by Johann Gutenberg’s invention of the printing press. At the origin of the history of piracy thus lies one of the defining events of Western civilization.

Printing posed serious problems of politics and authority for the generations following Gutenberg. It was in the process of grappling with those problems that they came up with the notion of piracy. At their heart was the question of how to conform the new enterprise to their existing societies. For, following Gutenberg’s first trials in Mainz in the mid-fifteenth century, printing had spread rapidly to the major European cities. It was a rapidly expanding and potentially revolutionary activity, and it would eventually inaugurate a transformation in practices of authorship, communication, and reading. But in the shorter term, in the fifteenth and sixteenth centuries, contemporaries could and did find ways to apprehend the press in terms relatively familiar to them. At the heart of printing, as they saw it, was a practical activity—a craft. It was a fast-growing and in some ways extraordinary one, to be sure, but it was still a craft nonetheless. And that suggested how it could be accommodated.

Early modern people knew how crafts should be organized, conducted, and regulated so as to take their place in an orderly commonwealt...