'Pirate'

Piracy is always a hot topic in the post-digital creative industries. Views differ, sometimes on generational lines, sometimes not. There's plenty of anecdotal evidence that piracy increases (or can increase) an author's (or other creator's) sales and revenue - here's one notable example - but many people have an instinctive reaction against their work being stolen or pirated.

I'm not here today to weigh in on that (though given that you can have all my writing for free at the moment, it should be pretty clear where I stand). Instead, I want to take a step back and look at the language we use about copyright infringement, and specifically the terms 'piracy' and 'stealing'.

I got onto this topic because I realised I couldn't see the clear connection between piracy-on-the-high-seas-type-piracy and copyright infringement. Old-fashioned as it might be, I take it as a principle that we should only accept a 'new' meaning of a term if there's a good reason for using that term rather than coming up with a new one, so I felt this question bore some looking at.

At first, I thought it might have something to do with so-called pirate radio stations, at least some of which did engage in the unlicensed broadcasting of copyrighted material, but it's actually much older than that. The complete OED (which I can't link to, because I only have access through my university) lists the earliest use of the term 'pirate' to mean the making of illegal copies of something as dating from 1603.

But why? 'Piracy' (or its etymological stem) has meant robbery at sea since Roman times, though it comes from a Greek root variously translated as 'to attempt', 'to experience' or 'to assault'. Now, the writer using the term in 1603 may well have been aware of the Greek link to 'experience', but I can't believe that was foremost in his mind in using the term. It seems to me far more likely that this was a figurative use, cognate with 'vagabond', 'brigand' or 'scoundrel'. In other words, the term was being used to dismiss and belittle the people to whom it was being applied.

That may have been unproblematic (quite possibly even fair) in the social climate of the 17th century, but times have changed. Whether or not we acknowledge it, we're in the middle of a serious cross-cultural debate about the balance between creator and audience rights. We can no longer afford loaded and pejorative name-calling. It will cripple the debate.

Fair enough, you might say, but it's not that pejorative in this case. After all, piracy is robbery at sea, 'content piracy' is robbery online - there's a connection there, isn't there? Copyright infringement is still stealing, isn't it?

Well, that's a more subtle question than it might seem. The digital copyright infringement that we're talking about is certainly the taking of something without the legal right to do so, so from a legal point of view, it's stealing. But if we define 'stealing' in purely legal terms, then we can't use the term outside of a legal context, and so we can't explain why the law prohibits stealing. Remember, it's the legal context which is being questioned here. Much of the debate about copyright is about what legal measures should be taken to protect the various parties with an interest in digital content.

Law should follow from principle, otherwise any law is as good as any other. What does 'stealing' mean outside of a legal context? If we can't define it as 'taking something illegally', what can we define it as?

Well, the principle underpinning the concept of stealing is the concept of property - the idea that individuals can own objects (not a universally popular idea, by the way). Stealing, then, is most naturally regarded as the taking of something from someone against their wishes (no, libertarians, taxes don't count - you consent to taxes by continuing to live in the country levying them).

Here's where it gets tricky. If you make an illegal copy of one of my stories, what have you taken from me? You haven't taken the story - I still have a copy, indeed a potentially infinite set of copies, of my own. And I can't say you've taken the money I would have made if you'd paid for it, because that money has at no point been my property. All that's been removed is the possibility of my making some money from selling that story to you.

I won't bring up the (somewhat facile) question of whether a possibility can be property - it's rather more abstract than I need to be to make my point. My point is this: we can't be sure that possibility has been removed, for two reasons. First, we can't be sure that it ever existed, since it might be the case that the only way you'd ever consider looking at my work is if you could get it for free. Second, we can't be sure it's ceased to exist, since you may subsequently love my work enough to decide to pay for it later.

Let's now go back to the question of legal framework, working up from this discussion of principle. The law requires you to prove beyond reasonable doubt that someone is guilty, otherwise they are presumed innocent. If we build our concept of copyright theft on this principle, then to prove theft, you have to prove that there was a possibility that you might buy my book (relatively unproblematic), but that now there is no such possibility (which I can see absolutely no way at all to do - if nothing else, to prove this, I would have to prove that my book isn't good enough to inspire your future loyalty to me, something that strikes me as a very poor marketing decision).

Maybe we're getting a bit far away from anything resembling a practical contribution to the debate. Let me bring it back to this point: the terms we use to brand people are powerful, problematic things. In the copyright debate, the law is far too cloudy, and too much of the lobbying actually carried out on behalf of vampiric third parties rather than the creators and audiences who have legitimate stakes in the matter, for us to be able to afford terminology that's going to put people's backs up.

The whole principle of a writer's life should be to never use words without thinking about them. Think about 'piracy' and 'stealing' before you start getting worked up about them, whether you're applying them to others or they're being applied to you.