The Lazy Smear of "Piracy"

As Hollywood studios and record labels watch a whole new online "sharing economy" arise -- in which ordinary people create and share things online without having to buy "product" -- Big Media is coming to a dismaying realization: the people formerly known as the audience are morphing into a participatory network. And this new social form is beating the hell out of an already-tattered business model.

So what’s the best response? In classic W. fashion, Big Media is doubling-down. They’re betting that even more proprietary technology and locked-up content will do the trick — but this time, with bigger locks and more aggressive surveillance of customers’ private lives. The copyright lobbies convinced Congress to give it a number of new enforcement tools last month, including free enforcement of civil cases by the U.S. Justice Department.

And oh, yes -- anyone who disagrees with the Hollywood vision for copyright law is a "pirate." Even the redoubtable Lawrence Lessig, the copyfighting law professor, was victimized by this slur last week when the Wall Street Journal published an excerpt of his new book, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin). The half-page essay was a call to reform copyright law, which currently squelches all sorts of amateur creativity and ordinary political speech.

But guess what headline the Wall Street Journal gave his essay? "In Defense of Piracy."

In a subsequent letter to the editor, Lessig responded: "’Piracy,’ as that term has come to be used, refers to the illegal use of copyrighted material. Nothing in my book encourages or supports the violation of existing law. No doubt, I want to see the law changed in important ways. But to say that makes me a defender of 'piracy’ is like saying the Journal editorial page endorses criminality whenever it calls for deregulation."

The use and abuse of the "pirate" metaphor to describe unauthorized copying of copyrighted works is now well-established. It is a reflexive reaction for industries that simply do not want to acknowledge the legitimacy or feasibility of alternatives. It’s far easier to churn out invective. The late Jack Valenti of the MPAA often likened copyright controversies to a "terrorist war" -- and you can guess which side he was on. The "terrorists" as it turns out, are 15-year-old kids who download stuff from the Internet and share it with their friends.

By using the lazy smear of "piracy" -- even when many uses of copyrighted works are palpably legal -- old-school capitalists like the Wall Street Journal are in effect dismissing critics as lawless kooks. Righteous accusations of piracy are so much easier than rational debate. The idea that various kinds of sharing on open digital platforms might also generate hefty profits (think YouTube or Google) causes editors’ heads to explode. They can’t get their minds around the idea that user freedoms could actually be the basis for robust, new types of markets.

As the "piracy" metaphor has gained currency, its literal history has all but disappeared from memory. But it’s worthy revisiting that history because it reveals a great deal.

I’ve gained an eye-opening perspective on piracy in recent days from reading The Many-Headed Hydra: The Hidden History of the Revolutionary Atlantic, by Peter Linebaugh and Marcus Rediker. The book brings to mind Howard Zinn’s People’s History of the United States. It’s a history of ordinary people as capitalism became a global force in the 17th and 18th Centuries. The book is not about piracy as a metaphor, but about the literal pirates of history. (Thanks to Lawrence Liang and Prashant Iyengar for the tip!)

The Many-Headed Hydra is the story about how slaves, soldiers, sailors, factory workers, laborers and other commoners from dozens of countries were pressed into the service of global capitalism on ships and plantations, and in factories and distant colonies. Proto-capitalists eager to accumulate wealth from global trade and conquest quickly realized that their work required the enclosure of the commons. They also needed to devise new types of servitude — wage slavery, indentured servitude, impressment onto ships, and outright capture and slavery. The maritime state arose to facilitate these needs. And so, through the dispossession of the commoners and their forced servitude, England came to dominate the early slave trade and became a great power.

The "pirates" were renegade populations of former slaves who had managed to escape their captors. Reconstituting themselves on pirate ships, they showed that cooperation and resistance were not only a useful way to escape slavery, but an attractive alternative to the brutish, ruthless norms of the commercial world. From the 1670s to 1730s, write Linebaugh and Rediker, "The ship became both an engine of capitalism in the wake of the bourgeois revolution in England and a setting of resistance." As working conditions on ships deteriorated -- too little food, rampant disease, involuntary servitude for years, withheld payment, etc. -- sailors often mutinied.

Ships became "a breeding ground of rebels," because of the harsh conditions and the lack of recourse to law. They also became "a forcing house of internationalism" that brought together Africans, Britons, Irish, Dutch, Porguguese, quashee and countless other races and cultural traditions. Soon the "hewers of wood and drawers of water" of diverse cultures and ethnicities -- the outcasts of all nations -- developed their own subterranean cultures of cooperation, egalitarianism and democracy. As Linebaugh and Rediker write:

The early-eighteenth-century pirate ship was a 'world turned upside down,' made so by the articles of agreement that established the rules and customs of the pirates’ social order, hydrarchy from below. Pirates distributed justice, elected officers, divided loot equally, and established a different discipline. They limited the authority of the captain, resisted many of the practices of the capitalist merchant shipping industry, and maintained a multicultural, multiracial, multinational social order. They sought to prove that ships did not have to be run in the brutal and oppressive ways of the merchant service and the Royal Navy. The pirate ship was democratic in an undemocratic age.

Piracy was reviled because it broke the law -- but more to the point, because it disrupted the slave trade. Pirates would often raid English and Dutch ships carrying full loads of African slaves and slave-made goods and gold to market. Piracy was not good for business because it introduced new costs, uncertainties and losses to commerce. It didn’t help that many pirates were former slaves and involuntary laborers who had escaped from servitude. In this sense, the mere existence of pirates set a "bad example" because they flouted the majesty of the law, which dictated that some people be treated as private property. Today’s pirates are making a similar statement against commodification -- in this case, of creativity and culture.

Pirates were a dangerous lot not just because they could be quite violent, but because they demonstrated alternative forms of work, community and authority. They demonstrated viable alternatives to the brutalities of commerce and the maritime state.

The paradigmatic case was the wreck of the Sea-Venture in 1609. The ship was owned by the Virginia Company and filled with rogues, beggars, and other dispossessed souls en route to the new colony of Virginia. A violent storm arose and blew the ship ashore in Bermuda where the suddenly freed proletariat established their own society of freedom, democratic consensus and communal property. The island became a temporary haven "off the grid" of global capitalism — until the shipwrecked were forced to continue on to Virginia, months later, where most of them died. Shakespeare used the Sea Venture story as the basis for his play, The Tempest.

In reading The Many-Headed Hydra, I couldn’t help but think of the "outcasts of all nations" who have created so many insurgent, bottom-up communities on the Internet. Think of the cosmopolitan "motley crews" who have built free software, Wikipedia, Craigslist, Flickr, remix music, video mashups, online social networks, and much else. Pirates all?

Hollywood regards most of these commoners as “pirates" — just as the WSJ editors unthinkingly cast Lessig as a pirate. But the real objection is that a growing band of rebels — commoners — are creating a new social order of their own, a new kind of digital republic. There’s nothing more threatening to the guardians of the status quo than an attractive, successful alternative.

Pirate ships on the high seas were largely eliminated by the 1730s, thanks to maritime warfare, hangings, and so forth. Global capitalism continued on its merry way. We can only hope that the so-called pirates of the 21st Century -- i.e., the multinational, multicultural social orders created in countless virtual spaces — will fare better in evading the punishments of vindictive Big Capital and in re-establishing the commons.

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Update: Matt Mason, author of The Pirate’s Dilemma, writing in The Economist,

Originally published by David Bollier at Onthecommons.org under a Creative Commons Attribution license.