Pirates of the Pacific
Pirates of the Pacific Rim ABSTRACT
The term piracy once referred simply to crimes at sea but Steve Cisler now also refers to widespread PIRACY AND THE PACIFIC crimes by which intellectual property is copied and sold or given away through electronic networks and in kiosks, shops and flea markets. Countries such as the U.S.A., whose origins were based on technol- he word pirate has its English roots in the 14th “cultural appropriation,” “file shar- ogy piracy, are now the most T protective. Companies that were century, when the Latin word pirata was used to describe the ing,” “imitative production,” “infor- once sued for infringement are Vikings. Popular culture, including movies and theme parks, mation commons,” “bio-piracy,” and now suing others. Piracy is cited has glorified the pirates of the 18th century, the so-called “copyleft.” as a source of income for Golden Age of piracy, especially the English pirates who at- Piracy takes place in every coun- criminal and extreme political tacked and plundered Spanish galleons. These pirates pre- try, at every level, with the involve- groups. Cultural appropriation sented an asymmetric threat to the Spanish; although they ment of consumers, designers, of traditional herbs, songs and art is not easily combated. Fake were not numerous, the pirates used stealth and superior ar- manufacturers, salespeople and gov- drugs and airline parts create maments to attack and plunder ships laden with spoils from ernments, even as legislators and safety issues that are not the New World. Between missions they hid out in secluded trade representatives beef up laws encountered with pirated books Caribbean coves. These pirates have become part of popu- and law enforcement organizations or DVDs. Some scholars and legal experts have called for lar culture, as have the characters portrayed by Errol Flynn, conduct raids and seek to curtail abandoning copyright or have Robert Newton, Charles Laughton and, most recently, Johnny such activity, which is estimated to proposed alternative schemes Depp: Captain Blood, Long John Silver, Captain Kidd and Cap- be 5–7% of total world trade [3]. In for intellectual property. tain Jack. Even as Disney Studios reaped profits from making addition, there are a massive num- a pirate into a hero in Pirates of the Caribbean, the parent com- ber of files being shared, not sold, pany worried about the other kind of piracy: copies of CDs by Internet users. Asa Hutchinson and DVDs churned out in various countries and sold all over of the U.S. Department of Homeland Security estimates that the world shortly after the movie’s first release in theaters. 2.6 billion songs are traded over file-sharing networks each Although there has been an increase in maritime piracy in month [4]. As bandwidth increases, ever-larger media files are the past few years in Asian shipping areas and near the failed being shared and Darknet [5] activities surge. While there has state of Somalia, this paper discusses only the forms of intel- been a great deal of media coverage of electronic piracy, which lectual property (IP) piracy that have become a dominant has been occurring since the days of electronic bulletin board issue in the world of international trade relations. Over the systems in the 1980s, almost anything of fame or value has been years, accusations of IP piracy have increased because of copied or appropriated. Apart from books, CDs and movies, changes in laws and increased enforcement. Today thousands consider these items: watches, apparel, sparkling wine, com- of consumers, large companies such as Google, terrorists, or- puter chips, fire extinguishers, guns, golf clubs, cell phones, ganized crime and small entrepreneurs have been accused of radios, prescription drugs, sunglasses, handbags, soaps, snow- acts of piracy, or at least copyright infringement. boards, water pumps, cigarettes, perfumes, art and antiques, As Doron Ben-Atar points out, the abstract notion of intel- indigenous art and crafts, identification cards, camping gear, lectual property emerged in Europe during the late medieval automobile and aircraft parts and the Chinese product seized period and early Renaissance, as artisan guilds protected their more by U.S. Customs than any other: batteries. Even shoe members’ power by restricting access to knowledge of techni- polish has been counterfeited, and in June 2004 the Coun- cal processes and operations of machines [1]. Pamela Long terfeiting Intelligence Bureau seized 12 tons of it in Kigali, explains that Venice passed the first patent law in 1447, rec- Rwanda. ognizing that “craft knowledge and inventions constituted property” and that “men of ingenuity”—especially glassmak- ers—were assets to Venice [2]. THE UNITED STATES AND PIRACY: By 1688 the term pirate had also come to mean someone who A SHORT HISTORY appropriated intellectual property, including music, written The United States is the site of both the duplication and sale works or an invention. Such people were known as “Land- of many counterfeit and pirated materials and of the sharing Pirates.” While the term pirate is usually pejorative, this pa- of copyrighted materials without a profit motive via the In- per employs it as a placeholder term for a deeply intertwined ternet. In addition, electronic auction networks such as eBay constellation of concepts and practices. This usage reflects the include independent sellers trafficking in counterfeit items attitude of the parties coining a term or phrase: think of the such as Tiffany jewelry, Calloway golf clubs and Burton snow- connotations of “knock-off,” “counterfeit,” “softlifting,” “fair boards [6]. U.S. industry and government are the driving use,” “bootleg,” “industrial espionage,” “Darknet,” “warez,” forces for the strengthening of laws protecting media content, physical products and other intellectual property from reverse engineering and copying. However, history reveals that the U.S.A. openly advocated intellectual piracy and had permis- Steve Cisler (librarian), Piracy and the Pacific Working Group Chair, 4415 Tilbury Drive, sive laws on these issues well into the late 19th century. Ben- San Jose, CA 95130, U.S.A. E-mail:
©2006 Steve Cisler LEONARDO, Vol. 39, No. 4, pp. 377–380, 2006 377
Downloaded from http://direct.mit.edu/leon/article-pdf/39/4/377/1573134/leon.2006.39.4.377.pdf by guest on 30 September 2021 Origins of American Industrial Power states, tional copyright regime until 1890. How- Timothy Wu sees this technology de- “Technology piracy was often undertaken ever, once technology began flowing out velopment as the result of a “team ef- not only with the full knowledge, but of- of the U.S., the country began its push to fort” of “passive, enabling technologists ten with the aggressive encouragement strengthen international IP laws, a policy paired with infringing users” who are ex- of officials of the federal and state gov- that continues to the present and is as ploiting the drastic reduction in prices ernments” [7]. Furthermore, much a part of U.S. foreign policy as the for recorders, computers, burners and war on terrorism. bandwidth to acquire and disseminate PIRACY AND THE PACIFIC by the time the revolution started, im- proving the level of American technol- In the 20th century there were inter- content [13]. Legislators have listened ogy through illegal appropriation of nal IP battles as important as those being to the copyright holders and have passed England’s protected industrial technol- waged in 2005. They have been charac- a slew of new laws since 1992: the No Elec- ogy became a prominent feature of the terized as contests between “compet- tronic Theft Act, an anti-bootlegging struggle for political and economic in- ing disseminators,” in which incumbent law (17 U.S.C. section 1101), the anti- dependence. . . . Like modern developing nations, early in its history the United copyright holders challenged more tech- circumvention portions of the Digital States violated intellectual property laws nologically advanced rivals. In the early Millennium Copyright Act, and section of rivals in order to catch up technolog- 1900s sheet-music publishers sued the 1008 of the Audio Digital Home Record- ically [8]. manufacturers of record players. Later, ing Act. Extending the laws to include In the 18th century England had crim- songwriters took on the new radio in- noncommercial infringement was a ma- inalized the diffusion of technology. Were dustry. While cable television is dominant jor shift, and in September 2003 the Re- Benjamin Franklin, on the other hand, now, it began as a community antenna cording Industry Association of America alive in the 21st century he would, no service for rural areas with poor recep- (RIAA) filed suit against 261 individuals doubt, support Richard Stallman and tion. In the 1960s network broadcasters for downloading music. The first crimi- Lawrence Lessig, current advocates of in- accused the nascent cable industry of be- nal they nabbed was a 12-year-old girl tellectual property regimes very different ing “signal pirates” because they relayed living in public housing in New York. As from the current one. the weak broadcast signals to their sub- of 2005 more than 5,700 suits had been scribers. The next major battle was be- filed [14]. Franklin did not succumb to the nation- tween Disney and Sony, which began I remember giving an introductory lec- alist view of knowledge and never be- came a technology protectionist. He marketing the video recorder (which was ture and demonstration on electronic supported the view that science and tech- invented by Ampex, an American com- publishing to members of the World In- nology were constructed in the univer- pany) in 1975 for a mere $2,295. Within tellectual Property Organization (WIPO) salist tradition as the shared property of a year Universal Studios and Disney filed visiting Silicon Valley in 1994. An early mankind. . . . Franklin invented a much complaints over copyright infringement, program called Fetch, which was be- more efficient wood-burning stove and did patent it but declined to capitalize on and the ever-colorful Jack Valenti, CEO ing used to retrieve out-of-copyright elec- the invention. “We should be glad of an of the Motion Picture Association of tronic texts (Poe, Conrad) in HyperCard Opportunity to serve others by any In- America, stated in Congressional testi- format, evoked gasps at its ease and speed, vention of ours, and this we should do mony about the threat of Sony’s infernal and when I referred to a teenager whose freely and generously” [9]. device, bedroom-based file server for such files Alexander Hamilton, George Wash- was connected to what was for the time a ington’s Secretary of the Treasury, advo- Nothing of value is free. It is very easy, fast integrated services digital network Mr. Chairman, to convince the people cated plundering European technology that it is in their best interest to give away (ISDN) line, the copyright lawyers re- and the encouragement of immigration somebody else’s property for nothing, acted as if this youth had an antitank of skilled workers along with the infusion but even the most guileless among us weapon pointed out his bedroom win- of the technology they used. A neighbor know that this is a cave of illusion where dow toward the nearby freeway. Clearly, commonsense is lured and then quietly of Washington’s, Thomas Atwood Digges, strangled [11]. all they considered was the potential for worked in Ireland and England as a tech- infringement, not legitimate uses of the nology pirate, encouraging artisans and He concluded, “I say to you that the technology. inventors to emigrate and take their tech- VCR is to the American film producer Piracy has been analyzed from histori- nology with them to America. In 1793 the and the American public as the Bos- cal perspectives, in the context of na- Patent Act prohibited foreigners from ton strangler is to the woman home tional goals and policies, from the ethical protecting their intellectual property in alone” [12]. perspectives of different categories of the U.S.A., and Americans could not After the Supreme Court ruled in fa- consumers, by Marxist theoreticians and receive patents for introducing new tech- vor of Sony, the VCR proved to be not in terms of the production capacity of the nology from Europe. This favored op- only a very profitable invention but also industries that produce both legitimate erators and entrepreneurs rather than a benefit to the movie industry and pro- and counterfeit products. U.S. Congres- inventors. In the few cases that did come vided a major source of revenue through sional hearings have invited testimony to trial, juries sided with the pirates and sales and rentals of videotapes. A new de- from experts who have tried to quantify against the outsiders because “diffusion velopment in the 1990s with growth of the economic impact of the activities be- of innovation throughout the community the Internet outside of research and ac- ing scrutinized. These experts are usually promoted the common good” [10]. This ademic sites was legislation aimed at end representatives of industry and law en- attitude changed in the second half of users, not just companies or rival tech- forcement or affiliated consultants. The the 19th century as countries began reg- nologies. While Internet service provid- numbers are usually single-source esti- ulating IP, although the U.S. copyright ers (ISPs) had the resources to lobby mates and are always staggering. They law of 1831 permitted international lit- Congress, which provided them with a include statistics on optical disc produc- erary piracy. Charles Dickens and other “safe harbor” and limited their liability in tion, downloads of files, peer-to-peer net- authors wrote in protest to Congress, but copyright infringement, noncommercial work activity, decline in sales of authentic the U.S.A. did not sign onto the interna- end users became the focus of regulation. items, attendance at media outlets and
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The- ble, Secretary General of Interpol, item- widespread is the problem of drugs with oreticians such as Maurizio Lazzarato see ized activity by Chechens, the IRA of no active ingredient or with ingredients PIRACY AND THE PACIFIC piracy as a form of protest against capi- Northern Ireland, Al Qaeda, the FARC that are harmful. Nobody really knows talism and its commodification of knowl- of Colombia, Hezbollah and Hamas in the global extent of the problem, but in edge, which, in his view, reduces access the tri-border area of Argentina, Para- countries such as Nigeria and Cambodia, to knowledge [16]. guay and Brazil. This free-trade zone is the majority of drugs sold are fake. The one of several in Latin America where incidents of injury and death are grue- PIRACY, TERRORISM, counterfeit and smuggled products of all some and include deaths from Viagra ORGANIZED CRIME types are readily available. Others include from Colombia containing floor wax, AND SECURITY the Colon Free Trade Zone in Panama; boric acid and yellow highway paint; and Maicao, Colombia, a notorious smug- the deaths of 89 children in Haiti in 1999 Piracy is lucrative for several reasons. gling port where tobacco companies have after taking cough syrup made with an- Much of the public does not consider it managed to evade local taxes; and Iqui- tifreeze. In Burma, Laos, Cambodia and to be a crime; the price (or lack of cost) que, Chile. The FBI estimates that Amer- Vietnam, 38% of artesunate tablets were of pirated items is usually very attractive, ican businesses suffer losses of $200–$250 found to be fake [21] (artesunate, de- even if the quality may vary greatly from billion a year from counterfeiting [19]. rived from a Chinese plant called sweet that of the original (especially in the case Investment by pirates in equipment to wormwood, is the only malaria drug ef- of fake drugs). Most people have little duplicate and distribute counterfeit me- fective against resistant strains found sympathy for the perceived losses of large dia products can be substantial and in- predominantly in Southeast Asia). Such corporations due to IP crimes, especially novative. In 1999 Macao marine police problems are not confined to the devel- if their profits are soaring. Senator Joe working with Hong Kong customs cap- oping world, however. In 2003, 20 mil- Biden’s remarks during a hearing on IP tured unmanned submarines that were lion counterfeit doses of the cholesterol- theft are typical: being towed behind boats. Using air as lowering drug Lipitor were pulled from It does not compute to people when we ballast, the pirates could raise or lower U.S. shelves. say we have lost 175,000 jobs. It doesn’t the vessels and even anchor them hidden Security technology designed to foil compute to people when all these folks under water and leave the area if pur- physical piracy includes an array of holo- show up at the Emmys and the Oscars sued, then return to the site by using a grams, microthreads, taggants, RFID with gowns that cost more than what peo- ple make in a year—I am not criticizing GPS tracking system to locate the subs. chips, guilloches, traitor-tracers and op- it—to say these poor artists are losing Officials seized almost 250,000 optical tically variable devices [22]. their income. discs stored in these vessels [20]. The du- plicating labs using such supplies range It does not compute when Microsoft’s ULTURAL PPROPRIATION profits continue to increase, which they from a few CD or DVD burners to much C A should, at significant numbers, and peo- larger and more sophisticated factories. Counterfeiters have also been found to ple say, “Oy veh! Microsoft, poor Micro- Many counterfeit items are made in fac- manufacture craft items in Asia and sell soft. . . . All I am doing is keeping Gates tories producing authentic branded them as American Indian in origin. In from having fifty zillion dollars. He’ll only have forty zillion dollars” [17]. products. After the first (legal) produc- February 2004, Armando Quiroz, co- tion quota is filled, the factory produces owner of an arts and crafts gallery on Returns on investments in piracy are more for its own distribution channels. the Laguna Pueblo in New Mexico, pre- high; penalties are rare and often not a sented “Navajo” rugs made in India and factor to most pirates. jewelry from Korea, saying that they PIRACY AND SAFETY ISSUES could be sold at a much lower price than One estimate is that the profits from counterfeiting are similar to drugs traf- Anti-counterfeiting organizations con- the authentic works he carried. ficking; there is a return of =C10 euros for tend that fake products such as aircraft Activists and indigenous groups have each =C1 invested. Other estimates are and automobile parts, foods and drugs accused pharmaceutical companies of that counterfeiting is more profitable result in illness, accidents and death. bio-piracy [23]. Banisteriopsis caapi, bet- than drug trafficking, one kilo of pirated Consider the following: ter known as ayahuasca or yage, is a vine CDs is worth more than one kilo of cannabis resin. The kilo of CDs is worth Pirated software or movies may be grown in the Andean Amazon. It has =C3000 and the kilo of cannabis resin is more flawed than the authentic released been used by indigenous healers for gen- valued at =C1000. The same source states version. DVDs of a Spanish-subtitled Pas- erations. In 1986 Loren Miller, an Amer- that a computer game costs =C0.20 to pro- sion of the Christ were found in 2004 sell- ican, obtained a patent on an alleged duce and sells at =C45 while cannabis costs =C1.52 a gram and sells at =C12.8 [18]. ing for $1 dollar each on the subways of variety of yage. The Center for Interna- Mexico City. Every few minutes through- tional Environmental Law showed the Politicians and trade organizations out the feature, however, a notice to the U.S. Patent Office numerous examples of have begun to emphasize the links be- members of the Academy of Motion Pic- “prior art,” and in 1999 the patent was re- tween pirate and counterfeit products ture Arts and Sciences voting on Oscar jected. After further arguments, however, and organized crime. Since 2001 there nominations would be displayed. In the it was reinstated [24]. The defense of has been a focus on sources of money early 1990s in Hong Kong some of the op- the rights of diffused groups historically for terrorist activity, especially that of erating system software for pirated ver- outside the Western legal structure has Al Qaeda. In addition to the diminished sions of Windows was in beta form, as proved to be an ongoing challenge, even personal fortune of Osama bin Laden, were the help manuals. when pharmaceutical companies, gov-
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Downloaded from http://direct.mit.edu/leon/article-pdf/39/4/377/1573134/leon.2006.39.4.377.pdf by guest on 30 September 2021 ernments and local communities share braries that have served as places to share 14. Johnny L. Roberts, “Out of Tune,” Newsweek, 22 common goals in exploiting a traditional knowledge through lending and by pro- September 2003. medicinal plant. These contests are very viding technology to copy print materi- 15. Evaluating International Intellectual Property different from record companies taking als will be pressured to curtail wholesale Piracy. Hearing Before the Committee on Foreign Relations, United States Senate, One Hundred teenagers and their parents to court, and rapid copying of their materials. Li- Eighth Congress, Second Session, 9 June 2004. American trade representatives threat- braries, however, are also trying to have 16. Maurizio Lazzarato, “New Forms of Production ening penalties against countries with their voices heard in forums like the
PIRACY AND THE PACIFIC and Circulation of Knowledge,” in Josephine Bosma rampant piracy, the Disney Company WIPO, long dominated by copyright et al., eds., Readme! Filtered by Nettime. ASCII Culture battling Sony, movie studios suing file- holders, to plead for the inclusion of and the Revenge of Knowledge (New York: Autonome- dia, 1999). sharing web sites, or publishers and au- clear and enduring fair-use guidelines for thors taking on Google for infringement. knowledge in its traditional and evolving 17. Ronald Noble testimony in [15]. formats. The Alternative Law Forum in 18. “Examining the Theft of American Intellectual India has been a longstanding source of Property at Home and Abroad.” Hearing Before the THE FUTURE Committee on Foreign Relations. United States Sen- new thinking about intellectual property ate, One Hundred Seventh Congress. Second Ses- With more Internet users having access regimes and the crises facing developing sion. 12 February 2002. On closer analysis, it is to faster networks, the availability of pi- countries and innovators and artists in unlikely that a counterfeit computer game will sell for =C45. rated works will increase. New technol- India [25]. Joost Smiers, professor of po- ogies such as the 300-GB DVD expected litical science of the arts in the Nether- 19. Cited by Noble in [3]. to appear at the end of 2006 will be lands, has recently proposed that artists 20. See [3] p. 89. exploited by legitimate and pirate dis- would benefit by abandoning copyright, 21. Lew Kontnik, “Counterfeits: The Cost of Com- tributors alike. Turnaround times for as doing so would undermine the un- bat,” Pharmaceutical Executive, 1 November 2003.
manufacturing firms to copy a consumer healthy dominance of a relatively few 22. See [5]. item will decrease, as industrial designs, culture-industry players [26]. 23. See especially the publications of Rural Ad- much like designer fashions, have a no- vancement Foundation International (RAFI). RAFI toriously short shelf life. Factories mak- References and Notes Communique (December 1996). Available at
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