Copyhype

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.” ³“Pirate“, 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.” ⁵“Plagiarism,” 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[+]

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.