Piracy

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Citation

Armin Medosh:

"Piracy does not simply exist because there are bloody-minded people who don't care for the rules and laws of the civilised world. It tends to emerge whenever there is a hegemonic power that asserts itself by establishing a trade monopoly. A monopoly, by its very nature, cuts out competition by other traders and destroys existing means of trade. People deprived of their traditional way of making a living resort to criminal activity. The hegemonic power, itself not averse to using violence to force others into submission, considers itself to be the law and defines others' activity as piracy." (http://jaromil.dyne.org/journal/piracy_privacy.html)


Concept

Is P2P Filesharing piracy, as the multinationals living from intellectual property rights claim?

Discussion

Piracy in South Today

This interview with Lawrence Liang makes important points at this discussion, which by itself is already biased because of how it frames the issue.

URL = http://icommons.org/2007/02/07/a-dmc-with-lawrence-liang/


http://icommons.org/2007/02/07/a-dmc-with-lawrence-liang/

A DMC with Lawrence Liang

Lawrence Liang, , by Frederick Noronha, CC BY-NC-SA 2.0News just in! We've confirmed that Lawrence Liang, iCommons' newest board member will be attending the iSummit 07 in Dubrovnik. Liang is a legal researcher with the Alternative Law Forum in Bangalore. His key areas of interest are in law, technology and culture, and he has written extensively on the topic of piracy, especially within the framework of the developing world. In light of the discussions on piracy on the iCommons mailing list (sign up here), we thought we'd find out what Lawrence had to say on the topic.

iCommons: There is an advert played before every movie screening in South African cinemas, the basic message is "you don't steal a handbag, you don't steal a cell phone - why would you steal a movie or music?" - it essentially equates piracy as 'stealing'. But why do you think piracy is not stealing?

Lawrence: In a recent event that was conducted in Bangalore, Sebastian Lutgert, an artist based in Berlin created a set of posters called the 'Good Questions' series. One of them asked the question, "Why is piracy called stealing even when the original does not disappear"? I guess that would be my most basic response. As we all know by now, the world of intangibles is marked by the fact that information is non-rivalrous and non-competitive as pubic goods go, and the basic assumption behind the word 'stealing' emerges from the world of the tangible. While it may be true that there are forms of 'information' sharing which are treated as being illegal in law, they still require a more precise definition since the existing one is not a value neutral one and it ends up framing the entire debate itself.

The way that an issue is framed sometimes ensures that half of the time, whether the debate is won or lost; once a debate is joined by certain terms, then the debate is already lost. Thus when you have examples that argue that there is no difference between stealing a cell phone and sharing music online, it works with the simplistic premise that a theft is a theft. But if there is indeed a difference between downloading a digital MP3 file and stealing a cell phone, then the theft discourse erases the difference by way of a self-fulfilling prophecy.

Pirated DVDs, by JasonUnbound, CC BY-NC 2.0iCommons: In the letter which started the heated debate, Shuddhabrata Sengupta wrote: "A world without our secret public libraries would be a poorer world. It would be a world in which very few people read, very few have books, and only those who could own things were the ones who could share them. It would also mean a world in which, eventually, very few people write books. So, instead of more, there would in the end be less culture to go around. The more you own, the less you can share." In relation to this text, what are your ideas on the 'need' or 'propensity' towards piracy in the developing world?

Lawrence: Piracy is a fact of life in most developing countries. Now we can either begin with a normative or moral position which decries anything which is illegal or we can attempt to provide thicker descriptions of the ways in which the legal and the illegal intersect in most developing countries. The content industry would then argue that this is an unethical and immoral act, thereby dabbling with older and more familiar modes through which the moral character of entire cultures can be written off.

For liberals, the usual argument which people find acceptable is the argument that links income to piracy, and that is a straightforward argument which is true for most parts. But that is only a part of the story. The challenge that interests me is to locate histories of piracy within larger histories of technology, culture and society, which pays close attention to questions of subjectivity, and the histories of knowledge and cultural practices in countries marked by sharp inequalities. This reframes the question beyond the 'need for piracy' kind of framework.


iCommons: Would you say that the concept of 'ownership' or 'property' in the developing world is different to the developed world? If so, how is it different?

Lawrence: Rather framing it through the perspective of developed v. developing, or western v. non-western, I would argue that there are different cultural histories of ownership.

The dominant tradition of looking at the idea of ownership is from the perspective of making a claim of exclusion. This underlies the heart of property and personhood within certain traditions, notably from Locke downwards. The idea that 'my own' could possibly refer not merely to a sovereign claim but also to a relationship, conflicts with the world of property norms where a reference to an 'own' is an act that makes a claim of absolute possession; declares the ability to exclude others and asserts the legal ability to alienate what you own.

And yet at the same time it seems that there indeed does exists a large set of claims within diverse cultural traditions where a claim towards something or someone may lie more in the domain of your relation to the person or object than as a claim of possession. In nehiyawin (Cree cosmology) to refer to something as 'mine' does not necessarily imply ownership, but refers instead to a relational proximity to objects (animate and inanimate) and beings, and the accompanying responsibilities and obligations that emerge from such a relational proximity.

Thinking of our relation to the world of knowledge and culture via the trope of proximity enables us to rethink our relations to our work, to ourselves and to each other - not as distinct sets of legal relations bound together by the idea of rights, but as a continuum which blurs the boundaries between rights, obligations and relationalities. Consider for instance the following statements, each of which refer to a certain claim which sounds deceptive similar but are in fact exist on very different ethical and legal registers:

This is my Pen
This is my Friend
This is my Poem

While the first statement refers to the classical conception of the claims of possessive individualism where the self/owner exist as inter-changeable concepts. This is 'my' pen and hence I own it.

The second statement takes us into the domain of relational proximities where an assertion of someone being your friend does not lead to an assumption, either of ownership or of exclusion, but into the domain of your closeness/ or apnaapan that you share with your fried. Thus the statement that this is my friend could well be mapped in terms of its presence in Hindi as Mere Apne or a sense of 'own', which leads to an understanding of how close you are to someone.

The third statement is perhaps the most deceptive because to assert that "this is my poem" within the social imaginary of intellectual property is to make a claim that sounds very much like "this is my Pen", whereas in fact it might be more accurate to think of it in terms of "this is my friend". And it is in this space where poems look like pens, that friendships get lost and property takes over.

iCommons: How do you think we can reconcile the IP interests of the developed world with the need for less restrictive IP in the developing world?

Lawrence: From an institutional perspective this could mean a range of initiatives including putting the agenda of human rights, public interest and development critically within the IP discourse. And some of the notable developments on this front include the WIPO development agenda, the proposed A2K treaty process etc.

And from the perspective of voluntary efforts, the promotion of initiatives likes the Free Software and Creative Commons movements. And the task of critical IP scholars would also be to provide accounts of media practices in developing countries which do not recycle demonizing and criminalizing accounts of piracy." (http://icommons.org/2007/02/07/a-dmc-with-lawrence-liang/)


Piracy in the development phase of western nations

Jaromil:

"piracy" practices are well widespread across the world, especially the south of the world, as underground economies that support the weaker areas of society and their development. On a wider historical perspective it is worth to consider this study by professor Doron Ben-Atar "Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power" (Yale University Press, 2004)

- During the first decades of America's existence as a nation, private citizens, voluntary associations, and government officials encouraged the smuggling of European inventions and artisans to the New World. These actions openly violated the intellectual property regimes of European nations. At the same time, the young republic was developing policies that set new standards for protecting industrial innovations. The American patent law of 1790 restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world was grounds to invalidate a patent. But the story behind the story is a little more complicated - and leaders of the developing world would be wise to look more closely at how the American system operated in its first 50 years. In theory the United States pioneered a new standard of intellectual property that set the highest possible requirements for patent protection-worldwide originality and novelty. In practice, the country encouraged widespread intellectual piracy and industrial espionage. Piracy took place with the full knowledge and sometimes even aggressive encouragement of government officials.

- Congress never protected the intellectual property of European authors and inventors, and Americans did not pay for the reprinting of literary works and unlicensed use of patented inventions. What fueled 19th century American boom was a dual system of principled commitment to an intellectual property regime combined with absence of commitment to enforce these laws. This ambiguous order generated innovation by promising patent monopolies. At the same time, by declining to crack down on technology pirates, it allowed for rapid dissemination of innovation that made American products better and cheaper." (http://bricolabs.net/politics/piracy/)


History

Dr. Dames:

"Several scholars have written convincingly about the role rhetoric and metaphors play in shaping contemporary copyright policy. Much of this scholarship explores the use and meaning of the term “piracy.” For example, William Patry’s Moral Panics and the Copyright Wars (2009) provides extensive research on the role of metaphors and their purported effect on copyright policy.

Another work, John Logie’s Peers, Pirates, and Persuasion: Rhetoric in the Peer-to-Peer Debates (2006), employs what the author calls “rhetorical historicism” to pay attention to the speaker and the institutions that are authorizing the discourse,. Logie also critiques the relationships between rhetoric and its broader cultural context.

Adrian Johns’ Piracy: The Intellectual Property Wars from Gutenberg to Gates (2010) chronicles the tensions between authorized and unauthorized producers and distributors of information, cultural and entertainment goods in British and American culture from the 17th through 21st centuries. Johns’ primary argument is that piracy, which he loosely defines as the unauthorized use or taking of works that are protected by one or more intellectual property regimes, is not new. Instead, Johns says, scope and an “antipiracy” industry that emerged in the 1970s and 1980s is the difference between the “piracy” of today and the “piracy” of yore.

As thorough as these efforts are, they attempt to analyze language and metaphors in isolation, without a thorough consideration of the political, social, and environmental conditions that influence language and its use." (http://thepiracyparadigm.com/2012/05/01/opening-statement/)


More Information

See the Piracy Paradigm research project of Dr. Dames


Book

* Adrian Johns. Piracy. The Intellectual Property Wars from Gutenberg to Gates. University of Chicago Press, 2010

URL = http://www.press.uchicago.edu/presssite/metadata.epl?isbn=9780226401188


Description

"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. Written with a historian’s flair for narrative and sparkling detail, the book swarms throughout with characters of genius, principle, cunning, and outright criminal intent: in the wars over piracy, it is the victims—from Charles Dickens to Bob Dylan—who have always been the best known, but the principal players—the pirates themselves—have long languished in obscurity, and it is their stories especially that Johns brings to life in these vivid pages." (http://www.press.uchicago.edu/presssite/metadata.epl?isbn=9780226401188)


Review

Jeffrey Rosen:

"In his invaluable book "Piracy," Adrian Jones argues that the tendency of intellectual property battles to undermine privacy is not new. On the contrary, Johns, a history professor at the University of Chicago, argues that ever since the medieval and Enlightenment eras, corporations have tried to defend their economic interests by searching for intellectual piracy in the private sphere of people's homes. He says that all of our current debates about intellectual piracy -- from Google's efforts to create a universal digital library to the fight over how vigorous patents should be -- have antecedents in the copyright wars of earlier eras.

After the first printing press arrived in England around 1471, intellectual property rights in books were enforced in two ways -- through monopolies granted by the crown or through guild registration with a Company of Stationers charged with punishing violators who reprinted books without permission. From the beginning there was a strong geographical dimension to printing: Legitimate, properly registered books were supposed to be published in respectable printing houses or homes, while reprinted, pirate copies, such as seditious books criticizing the crown, were said to be published by "private" presses -- in "holes" or "corners" hidden from respectable society. The right to search a printing house was crucially important to enforcing intellectual property rights, but constables of the crown didn't enjoy that privilege. Instead, self-policing by members of the guild ensured against invasive searches: A guild member who authorized the search of a fellow printer's house was likely to be investigated himself by the same printer in return.

In the late 18th century, London booksellers -- threatened by Scottish and Irish reprinters who pirated their books -- tried to extend this system of self-policing throughout the United Kingdom. They asserted a kind of perpetual literary property, rooted in the customs of the trade and policed by their own corps of roving agents. This gambit dramatically backfired when challenged by the "pirate in chief," a Scottish reprinter named Alexander Donaldson, who claimed that the asserted right of private agents to snoop in private homes threatened the public sphere. In 1774, in the most important copyright case in Anglo-American legal history, the British House of Lords sided with Donaldson and rejected the idea of a perpetual copyright. The pirates had successfully cast themselves as defenders of free speech, privacy and the public domain.

Johns shows how a similar pattern recurred in the 19th and 20th centuries. In 1902, music pirates took advantage of a revolutionary process that allowed for the exact copying of sheet music, which they sold far more cheaply than the original publishers did. The sheet music companies successfully lobbied the government for a dramatic strengthening of copyright law -- one that many people saw as a threat to civil liberties. It allowed the police, on the request of a piracy victim, to seize illicit sheet music without first getting a warrant. The law didn't allow forced entry into houses, since it assumed that pirated sheet music was sold on the streets, but after a few high-profile raids, the pirates began to portray themselves, in court and in the newspapers, as "heroic defenders of domestic privacy." And when the British government, in an effort to combat radio piracy in the 1920s, said that the right to enter homes was the key to maintaining the state's "control of the ether," critics responded that abolishing the radio would be better than forfeiting liberty.

In the course of describing these intellectual and economic battles, Jones includes memorable stories of a variety of Pirate Kings, such as Matthew Carey, the 19th-century American pirate and economic nationalist who campaigned for the free reprinting of European pamphlets. He was so single-minded that his son denounced him for allowing his cause to destroy his family, leading Carey to accuse his son of "filial treason" and challenge him to a duel.

Johns ends with an insightful chapter describing how the old battles between property, piracy and privacy are being replayed today. The debate over Google's book-scanning project recalls Enlightenment-era attempts to create a universal library through mandatory book depository laws, debates over pharmaceutical patenting were anticipated in the Victorian era, and the file-sharers of today resemble the home-tapers of the 1960s.

Now that digital rights management technology has the capacity to invade the privacy of the home far more dramatically than the constables of old, and now that the U.S. government has alarmingly committed its enforcement powers to uphold corporate property rights in ways that are even more invasive to domestic privacy, Johns suggests rethinking the distinctions that have defined the intellectual property wars for centuries. He criticizes as obsolete the distinction between literary creativity, which is regulated by copyright, and mechanical creativity, which is regulated by patents. A modern taxonomy, Johns suggests, might focus on the distinction between digital and analog copies or -- even more radically -- recognize multiple categories of material regulated by different legal regimes: "genetic, digital, algorithmic, inscribed, and more." Although "more complex in theory," this system might be simpler to use in practice, because it would more closely reflect the "contours of creative life." Since "the history of piracy is the history of modernity," Johns concludes in this challenging, richly detailed and provocative book, the choices we make about how to balance property, creativity and privacy will define "the contours of creative life" for the 21st century." (http://www.washingtonpost.com/wp-dyn/content/article/2010/07/02/AR2010070202277.html)