Piracy and the Law

Gary Hall introduces Piracy as a Business Force by Adrian Johns, an article published in Volume 10 of Culture Machine.

In The Enemy of All: Piracy and the Law of Nations, Daniel Heller-Roazen shows how, when the word peiratēs began to appear in the texts of the ancient Greeks, it was ‘closely related to the noun peira, “trial” or “attempt”, and so to the verb peiraō: the “pirate” would then be the one who “tests”, “puts to proof”, “contends with”, and “makes an attempt”’. It is here that the modern term ‘pirate’ has its etymological origins. Building on this original sense of the word, we can say that a responsible ethical – as opposed to moralistic – approach to piracy wouldn’t presume to know what piracy is in advance. For example, we can’t presume that the apparent challenge to the commodity culture and property relations of post-industrial capitalist society offered by much contemporary online piracy means there is something inherently oppositional, leftist, or even politically or cultural progressive about it. On the contrary, and as Adrian Johns illustrates in ‘Piracy as a Business Force’, much of the philosophy behind today’s piracy is actually ‘a moral philosophy through and through’, one which has its historical roots in a ‘marked libertarian ideology’. In a UK context, it is a philosophy which ‘helped to make Thatcherism in particular what it was’, Johns notes.

From such an ethical perspective, what’s interesting about certain instances of digital culture – Napster, The Pirate Bay, Google Book Search, AAAAARG.org, Wikileaks might all be examples – is that we can’t tell at the time of their initial emergence whether they are legitimate or not. This is because the new conditions made possible by digital culture – such as the ability to digitize and make freely available whole libraries worth of books – at times require the creation of equally new intellectual property laws and copyright policies. The UK’s Digital Economies Bill is one example; the Google Book settlement another. Consequently, we can never be sure whether these so-called pirates, in the ‘attempts’ they’re making to ‘contend with’ the new conditions and possibilities created by digital culture, to ‘trial’ them, put them to the ‘proof’, are not in fact involved in the creation of the very new laws, policies, clauses, settlements, licensing agreements and acts of Congress and Parliament by which they could be judged. As in the case of William Fox – a pirate filmmaker who migrated from the East Coast of the United States to California to elude controls granted by patents to the inventor of filmmaking, Thomas Edison, and who founded 20^th Century Fox (now owned by that scourge of internet freedom, openness and piracy, Rupert Murdoch), partly, as Lawrence Lessig recounts in Free Culture, by pirating Edison’s creative property – we can never tell the founder of a new institution or culture in advance. We can only really judge whether the activities of such supposed pirates are legal or not, legitimate or not, just or not, from some point in an indefinite future.

It follows that we can’t tell what’s going to happen with online pirate culture. It may lead to new forms of education, culture and economy where: people work and create for reasons other than to get paid; the protection of Intellectual Property is no longer possible; the institutions of the culture industry – the press, book publishers, the film industry and so forth – are radically reconfigured; music is available to freely download and share (which it already is); academic monographs are disseminated using peer-to-peer networks (which they already are); and even ideas regarding the indivisible, liberal, humanist, proprietorial author are dramatically transformed. In other words, such pirate culture may play a part in the development of a new economy and new way of organising  post-industrial society, and in the process have as profound an effect as did the ‘establishment of copyright... in the eighteenth century, and the development of modern patent systems in the nineteenth’, as Johns put it in a recent email interview. But it may not. And that’s the point. As with the impact of the French Revolution, it’s still too early to tell.

Gary Hall, Coventry University

Gary Hall is Professor of Media and Performing Arts at Coventry University and an Editor of Culture Machine.