Are copyright infringers "pirates" and "thieves"?

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The habit of relying on metaphors such as "piracy" and "theft" to describe violations of copyright protections can elicit enraged reactions online—“it’s infringement, not theft!” is one common lament. True as that may be, using tough words in the copyright context is a centuries-old practice. Consider the following extracts from a 1704 essay by Daniel Defoe, known for his advocacy for authors' rights long before Robinson Crusoe was published.

Defoe envisioned a law that would "put a Stop to a certain sort of Thieving which is now in full practice in England, and which no Law extends to punish, viz. some Printers and Booksellers printing Copies none of their own." He went on to condemn "pirating Books in smaller Print, and meaner Paper, in order to sell them lower than the first Impression. Thus as soon as a Book is publish'd by the Author, a raskally Fellow buys it, and immediately falls to work upon it, and if it was a Book of a Crown, he will contract it so as to sell it for two Shillings… This is down-right robbing on the High-way…"

Such rhetorical flourishes (gotta love that "raskally Fellow" gibe!) weren't confined to unofficial writings about copyright. In 1774, when England's highest court issued a landmark decision that effectively ended an ongoing slugfest between established bookselling concerns and recently formed rival outfits, one of the judges noted that lower courts often had entered rulings that "not only stopped the sale of the pirated copies, but also obliged the pirate to account for what he had sold."

Neither "piracy" nor "theft" is mentioned in current US copyright statutes (the critics are correct that the law describes only “infringement”.) Nevertheless, modern American judges carry on the tradition of metaphor-infused descriptions of anti-copyright mischief. For instance, Pierre Leval, a prominent New York-based federal judge, gave the following characterization of "piracy" in a 1990 law review article: "Successful fabric designs, fashion accessories, toys, and videos instantly spawn parasitic industries selling cheap copies," he wrote. "These infringers incur no development cost, no advertising expense, and little risk. They free-ride on the copyright owner's publicity, undercut the market, and deprive the copyright owner of the rewards of his creation."

US jurists continue to rely on these terms as more and more copyright disputes involve online conduct. The Washington, DC-based federal judge in a suit against a group of BitTorrent enthusiasts noted last year that the defendants were accused of using the protocol to "unlawfully download a pirated copy of [a California production company's] movie onto their computers." A ruling last year by New York's highest appeals court discussed the national reach of "an injury allegedly inflicted by digital piracy…"

Some judges overseeing copyright cases can't help but (ahem) go a bit overboard with the metaphor-weaving. An Iowa federal judge hearing a recent suit over alleged online porno-pilfering had this to say about the case's defendants: "The modern day pirates at issue in this litigation do not wear tricornes and extract their ill gotten booty at cutlass point, but with a mouse and the internet. Nonetheless, their theft of property is every bit as lucrative as their brethren in the golden age of piracy."

And of course, just as Defoe did more than three hundred years ago, latter-day content creators employ "piracy" and "theft" in publications promoting their own agenda. Here's the definition of "piracy" from the Motion Picture Association of America's online FAQ: "Piracy is theft and includes the unauthorized copying, distribution, performance or other use of copyrighted materials. With regard to film and television, the term primarily relates to downloading, uploading, linking to, or otherwise providing access to unauthorized copies of movies, television shows or other copyrighted content on the Internet …"

Notice that the MPAA definition covers a relatively broad array of misconduct, while the robe-wearing crowd generally uses "piracy" to characterize large-scale, typically profit-motivated violations of copyright. But both approaches reflect a desire to persuade the world, via metaphor, that the conduct being described is inherently harmful. They don’t always have the desired effect—consider, for instance, the name chosen by the creators of The Pirate Bay.

Because there's never been a universal consensus as to what, exactly, "piracy" and "theft" mean when used in the copyright context, different people with different agendas use them to evoke different concepts. George Orwell famously criticized the "dump of worn-out metaphors which have lost all evocative power" after being repeatedly used by people who no longer even know what they originally meant. That's sort of what's going on in today's copyright debate with "piracy" and "theft," but with the twist that the meanings of these metaphors were never particularly clear to begin with.

The result? Otherwise intelligent people sounding... rather confused. Check out these monstrously muddled musings from a recent HuffingtonPost article by Eric Clemons, an information management professor at Wharton:

"Piracy is a complicated issue," he begins, without defining the term. "Is online piracy really theft?" Clemons asks a few lines later, still without offering a definition. "Absolutely. As the laws regarding intellectual property are current [sic] written, most forms of online piracy are theft; examples include as [sic] downloading works of music, entire movies, or software that has been cracked so that it can be used without a key or proof of ownership."

This is fatally imprecise. Read literally, it suggests I can't even download songs off iTunes without becoming a pirate. Read with an eye towards unauthorized downloads, it still raises questions —if I download content in a way that does violate the law, even just once, am I suddenly in the same boat (so to speak) as Megaupload boss Kim Dotcom?

"Other uses of copyrighted content," Clemons continues, "like the use of lead paragraphs from newspaper or magazine stories, may be protected as 'fair use' even [sic] ‘too much fair use’ may they harm [sic] the owners of the intellectual property... But most piracy is theft, and most piracy is illegal."

Hmmm. Clemons's piece may very well be Exhibit A in the case for more precise nomenclature within the copyright debate (and, perhaps, for better proofreading). But before that change can happen, it's important to understand the significance of "piracy" and "theft" in current copyright statutes, where the terms came from, and what users of these metaphors are really trying to say.

"Infringement" by any other name?

Some lawyers and academics specializing in copyright law wouldn't be caught dead using either "piracy" or "theft" in the copyright context. The reason? It's not technically accurate. Contrary to Clemons' depiction, these terms don't appear in existing US statutes on conduct that violates copyright protections—"infringement" is the official term. (Clemons's piece references "infringement" exactly zero times.)

"I don't think there's anything wrong with 'infringement,'" William Patry, a prolific copyright scholar who currently serves as senior copyright counsel at Google, told Ars Technica. Patry argues that metaphors like "piracy," when used in the copyright context, are "political, not descriptive."

In the US, individual pieces of copyright legislation have often had titles containing "piracy" or "theft." And, not surprisingly, the text of the recently controversial, content industry-backed Stop Online Piracy Act featured multiple appearances of both words. But technically speaking, "infringement" is the term that currently carries official significance.

Terry Hart, who runs the popular law blog Copyhype, told me that it's important to remember that "piracy" and "theft" were being used in the copyright context by American judges long before the rise of "infringement" (which was first inserted into US copyright statutes in 1870.) Americans didn't invent this metaphor usage; we inherited—misappropriated?—it from the British. Historians, including Adrian Johns of the University of Chicago, trace the origins of metaphor-tinged copyright-related rhetoric to the explosion of the printing industry roughly half-a-millennium ago. Those who stood to profit from sales of original content needed a way to simultaneously express their frustration at, and dissuade others from engaging in, unauthorized use of their work. What better way than to liken rogue printers and booksellers to criminals?

By 1710, when the British established a formal system for government-regulated copyright protections, authors like Defoe had been throwing around "piracy" and "theft" for a number of years. The metaphor-slinging went intercontinental in the 19th century, when the fledgling US government refused to honor copyrights protecting British books, prompting the Brits to label their former colony "The Barbary Coast." (According to Patry, the Yankee policy constituted a cost-effective means of promoting literacy among a relatively undereducated American populace.)

"Usage [of these metaphors] spikes at moments of tension," Johns told me. Like the moment in the middle of the 20th century, following the rise of unregulated ("pirate") radio transmissions. Currently, we appear to be at the crest of a new spike with origins in 1980s Taper Culture.

K. Matthew Dames, a copyright scholar at Syracuse, remembers noticing an uptick in media coverage of copyright infringement in the mid-70s, when VHS first hit the US market; the film industry voiced fears that the new medium would destroy their business. (Majid Yar, a sociologist at the UK's University of Hull, called my attention to the fact that in 1980s Britain, the British Phonographic Industry waged an anti-taping campaign featuring a Jolly Roger-style logo with a cassette as the skull.)

By the end of the 1980s, you simply weren't cool if you didn't own a Maxell poster; the decade was capped off by Christian Slater's unforgettable portrayal of a cassette-loving teen with his very own pirate radio program.

Dow Jones' Factiva has been compiling print editions of The New York Times and The Wall Street Journal since 1980, which makes it possible to analyze word-use frequency in both papers. From 1980 to 1985, "piracy" (and derivations thereof) and/or "theft" appeared in copyright-related articles at a rate of roughly 20 per year; the 1985-1990 rate was around 30. The advent of digital content saw the use-incidence rate rise to approximately 55 per year from 1990 to 1998 before exploding when the mp3/ripping/file-sharing craze gave birth to Napster. Between 1999 and 2001—Napster's years of existence—the use-incidence rate leapt to nearly 110 annually. It's averaged around 95 in the last decade.

Let's take a closer look at the terms themselves.

"Piracy"

"Piracy" stems from the Ancient Greek verb roughly transliterated as "pay-roh," which originally meant "to pierce." In Homeric epics, it was typically utilized in culinary scenes, to describe what hungry men did to meat with a spit. But occasionally the word was used metaphorically, in the sense of forcefully pushing one's way into a situation. A nominative variant eventually was applied to sea-based plunderers. And from that word came Latin's "pirata," which became "pirate" in English.

Historically, "piracy" was applied in the copyright context to those who intentionally flouted copyright protections, generally for financial gain. For example, a printer in the 18th Century who reproduced works of literature without compensating those who owned the rights to them was a "pirate." And that printer's books were "pirated" goods. But the metaphor didn't directly extend to the average buyer on the street.

Some copyright scholars believe that in recent years, the content industry has successfully promoted a broadening of "piracy" to cover any unauthorized use, financially motivated or not. "What's changed is that the term initially got assigned to illegal reproduction and sale of works, and now it's morphed into something that covers any unsanctioned copying," says Dames.

Recall the definition of "piracy" from the MPAA's online FAQ section: "piracy is theft and includes the unauthorized… use of copyrighted materials." See also this similar language from the Recording Industry Association of America. Online American English dictionary definitions reflect this broader application, but apparently the narrower definition is still the norm in British English. The switch within American English apparently took place in the mid-'90s. A 1993 version of Webster's not available online had an "appropriation and reproduction" definition, while versions for 1995 and beyond contain an "any unauthorized use" definition.

"It used to be that 'piracy' was only used when describing commercial offenses," Johns says. "Now, the content industry wants to extend the term to cover all kinds of illicit downloading, whether commercial or not."

Pros

Under American law, copyright infringement triggers strict liability—the infringer's intent is irrelevant. Intent matters when calculating damages or weighing application of enhanced punishments, but "infringement" alone captures a wide spectrum of misconduct. The historical connotation of "piracy" thus provides an easy means of describing massive, willful infringement motivated by financial gain.

"'Copyright infringement' itself can apply to such a broad range of activities, but usually when I talk about 'piracy,' it will be something large-scale," says Copyhype's Hart. "Opposition to the term is a bit like grammar nitpicking. This is how the term has been commonly used over several centuries, on multiple levels, up to and including courts."

"I'm not so keen on 'theft,' but 'piracy' I can actually see a use for, because of the connotation with informational offenses," Johns says. "I think it's no longer the case that 'piracy' carries with it connotations of intrinsic criminality."

Cons

The simplistic argument against using "piracy" is that the term should only be applied to plunder at sea, as the term itself is defined by US law. More compelling is the claim that expanding "piracy" unhelpfully conflates large-scale profiteering with use that may be unauthorized but is still legal.

One noteworthy argument against using the term comes from within the pro-rightsholder camp itself. Among younger generations, "piracy" has been romanticized into a metaphor for heroic rebellion against staid conventions. The main change-agent? Johnny Depp. Not Depp qua Depp, but rather Depp's franchise-building role as a heart-of-gold pirate.

A few years ago, clever rightsholder rhetoricians defended using "piracy," and with broad application, on the grounds that the metaphor highlights the victimhood of content-creators; even noncommercial consumption of a work results in substantial harm to the rightful beneficiary, according to this line of reasoning. But these days, discerning content-industry spin doctors seem to be eschewing use of the term. In a recent post on PandoDaily, litigator Andrew Bridges noted that "theft" has become the go-to metaphor for the SOPA-loving crowd. Hart thinks it's only natural that rightsholders distance themselves from "piracy" as sites like The Pirate Bay adopt it as a rallying cry.

"'Piracy' hasn't been the best term for me to use," Sandra Aistars, executive director of the Copyright Alliance, told me. Aistars cites a reason not directly related to the Depp-effect. "In my experience, when I say 'piracy' to people, they think of [infringement related to] movies and music, and don't necessarily think of a graphic artist, or a photographer."

"Theft"

Stemming from Old English and believed to have first been used before the 12th Century, "theft" carries a primary definition, in both lay and legal dictionaries, of intentional and unpermitted taking of personal property.

The history of the term's usage in the copyright context has not received anywhere near as much attention as has "piracy." Johns says the practice of labeling ideas as personal property susceptible to thievery dates back to at least the Roman period.

The burning question with "theft" is whether it should be tethered to the traditional view that "property" is limited to the tangible.

Pros

"I think it's accurate to use the term 'theft,' because if you look at classical definitions of 'theft,' they all incorporate depriving someone of something of value," says Aistars, who calls "theft" the "clearest phrase to use when talking about the impact [of infringement] on an individual artist."

As technology evolves, deprivation-of-value is more likely to involve intangible things. For example, under American federal law, "identity theft" can be effectuated by copying and using for nefarious purposes numerical combinations assigned to a particular person by a government agency. What's the practical difference between appropriating someone's Social Security number in order to set up a bogus line of credit and downloading for free a song being sold commercially? Both cause deprivation-of-value to the intended beneficiary.

Cons

As with "piracy," there's the willfulness-related wrinkle—one errant click might qualify someone as an infringer, but is it appropriate to label them a "thief" as well?

"Personally, I'm less inclined to use 'theft' when talking about copyright infringement," Hart says. "It's a loaded term, with moral implications."

Hart points out that members of the US Supreme Court appear to be conflicted on the infringement-as-theft issue (perhaps mirroring the English law lords' division over the ideas-as-property conundrum in the 1774 case.)

Some note that in the digital age, labeling each lost sale as "theft" yields absurd conceptual results—for example, the vast overvaluation of an iPod full of illegal downloads.

For Patry, applying "theft" to infringement ignores the nature of copyright itself. "This is a regulatory right given by Congress," he says, "and the idea of unauthorized use as 'theft' is simply wrong."

Alternatives

With their loaded rhetorical weight, "piracy" and "theft" should be used more cautiously than they often are. Not that they're the only copyright-related metaphors to draw criticism: Hart told me that readers of his blog frequently gripe that the term "file-sharing" makes organized infringement sound like an exercise in intellectual philanthropy.

What's wrong with simply describing all anti-copyright conduct as "infringement"? The term's introduction into US copyright law in the mid-19th century appears to reflect a desire to emphasize technical accuracy over vivid rhetoric. Instead of framing misconduct that violates copyright protections as a direct affront to a work's creator/owner, "infringement" stresses the negative impact upon the government-granted right itself. (Dames alternatively posits that "infringement" allowed 18th and early 19th Century speakers and writers to quickly call their audiences' attention to creative content-related offenses at a time when nautical piracy was still prevalent.)

The primary definition of the Latin infringere was "to break," in the physical sense, but Roman wordsmiths including Cicero often used the verb and its variations to describe a conceptual weakening or diminution. Using "infringe" in English as a synonym for "encroach" has been known since roughly 1760, and the term was famously used in the Second Amendment to the US Constitution (regarding the right to bear arms). But "infringement" didn't appear in America’s foundational Copyright Act of 1790; its inclusion in US statutory copyright law only came via changes enacted in 1870. Not even the in-house scholars at the US Copyright Office could tell Ars Technica how or why "infringement" came to be inserted in the statutes, but they note that US judges overseeing copyright and patent disputes had occasionally used the term since at least the 1820s.

Of course, "infringement" doesn't exactly roll off the tongue, and it doesn't readily lend itself to differentiation between infrequent, noncommercial violators and large-scale criminal schemes. (Relying on the current infringement statute's damages/penalties stratifications to fulfill that objective, as Patry suggested to me, could be linguistically clumsy.)

Past attempts at introducing alternatives to "infringement" haven't succeeded, and the chances that a new set of non-loaded terms, no matter how catchy, can overcome the historical prominence of "piracy" and "theft" are slim. Besides, words often function as political tools capable of swaying opinion; how many users of such words even want an “objective” term?

Since we appear to be stuck with these terms, perhaps the most pragmatic approach is to demand greater clarity in their usage—by pushing those involved in the copyright debate to either limit the terms' application to specific scenarios that involve a level of willfulness and/or commercial motivation or provide better reasons why they should be applied to unintentional conduct. Would Orwell approve? Probably not. But an ill-defined metaphor is at least better than an undefined metaphor.

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