Piracy: The Intellectual Property Wars from Gutenberg to Gates

Piracy\ THE INTELLECTUAL PROPERTY WARS FROM GUTENBERG TO GATES \ \ By Adrian Johns \ THE UNIVERSITY OF CHICAGO PRESS\ Copyright © 2009 Adrian Johns\ All right reserved.\ ISBN: 978-0-226-40119-5 \ \ \ Chapter One\ A General History of the Pirates \ In mid-2004, executives at the Tokyo headquarters of the huge electronics multinational NEC began to hear reports that its products were being counterfeited and sold in Chinese stores. Nobody was at all surprised. Reports of this kind were routine for any corporation of NEC's size and reach, and in this case they initially seemed to concern small stuff—blank DVDs and the like. The company nevertheless moved swiftly to put into action its standard response in such cases, hiring a firm called International Risk to look into the matter. There was no reason to suspect that this would prove to be anything more than yet another incident like all the others—irritating, no doubt, but impossible to suppress entirely. Piracy of this kind was the unavoidable price of doing business on a global scale.\ Two years, half a dozen countries, and several continents later, what International Risk had unveiled shocked even the most jaded experts in today's industrial shenanigans. They revealed not just a few streetwise DVD pirates, but an entire parallel NEC organization. As the real company's senior vice president ruefully remarked, the pirates had "attempted to completely assume the NEC brand." Their version, like the original, was multinational and highly professional. Its agents carried business cards. They were even recruited publicly by what looked like legitimate advertising. The piratical firm had not only replicated existing NEC goods, but actively invested in research and development to devise its own. Over time, it had produced an entire range of consumer products, from MP3 players to lavish home theater systems. These goods were of high quality, with warranties emulating NEC's own (in fact, the conspiracy came to light only when users tried to exercise their warranty rights by contacting NEC). To manufacture them the impostor multinational had signed royalty arrangements with more than fifty businesses scattered through China, Hong Kong, and Taiwan, at least some of which seemed to believe they were working for the real NEC. And it had developed its own sophisticated distribution networks, allowing its products to reach a global market extending at least as far as Africa and Europe. If this was indeed, as the international press called it, the "next step in pirating," then it was a very dramatic and impressive step indeed.\ When news of the pirate NEC broke in mid-2006, the story quickly winged its way across the Internet. Readers and commentators in the blogosphere reproduced the original press reports many times over. They expressed dismay at the implications. But their dismay was often accompanied by a drop of schadenfreude. Now, they realized, none of them could really be confident that the "NEC" disk drives, chips, screens, or keyboards on which they were doing their blogging were what they claimed to be. Some found this ominous, because of what it implied about knowledge in general in the networked world. Others acknowledged those implications but were only too happy to profess that they found them appealing: here was a gigantic corporation coming a cropper at the hands of unbranded outlaws who had proved themselves faster, nimbler, smarter. The Net's echo-chamber amplified the incident into a symbol of every cultural fear, epistemic doubt, and libertarian dream suggested by the digital age. Here, it seemed, was a glimpse of where everyday menaces like phishing and identity theft were inexorably leading.\ This case of a doppelgänger multinational does indeed seem to mark some kind of culmination. It is hard to imagine a more spectacular act of piracy, unless perhaps one could conjure up a fake World Intellectual Property Organization. And in fact the venture came to light almost exactly on cue, just as impersonation of this kind had been identified as a growing piratical trend, set to succeed hacking and pharming as the mode of digital banditry du jour. "Brandjacking," it was called. It had even been singled out as a looming problem by the CEO of International Risk—who, not coincidentally, was a longtime veteran of the Hong Kong police experienced in tackling human kidnappings. Such piracy, he had cautioned in public speeches, was fast becoming a fact of life for the electronics and pharmaceuticals industries, with a recognizable modus operandi. An episode generally began when a legitimate company licensed a factory to manufacture its goods; the brandjackers who stood behind the factory would then take the documentation involved in the license, duplicate it, and redeploy it in order to recruit other plants. These other operations often remained blissfully unaware that they were dealing with impostors. After all, the outlaws helped themselves to the very devices—affidavits, bills, forms, contracts—that are supposed to guarantee legitimacy in modern capitalism. Especially hard to fight were brandjackers who operated across national boundaries, particularly the strait separating Taiwan from mainland China. The authorities in the People's Republic might well prove reluctant to prosecute local businesses that could plausibly claim to be acting in innocence. All of these vulnerabilities were exploited to the full by NEC's evil twin.\ NEC's discomfiting experience throws into sharp relief the sheer range of phenomena that fall under the term "piracy" as it is nowadays used. They extend far beyond the piecemeal purloining of intellectual property. They reach, in fact, to the defining elements of modern culture itself: to science and technology; to authorship, authenticity, and credibility; to policing and politics; to the premises on which economic activity and social order rest. That is why the topic of piracy causes the anxiety that it so evidently does. Ours is supposed to be an age of information—even of an information revolution. Yet it suddenly seems as though enemies of intellectual property are swarming everywhere, and the ground rules for an information economy are nowhere secure. Universities find themselves havens for countless devotees of file-sharing software, making blithe use of services that the recording industry condemns flatly as piracy. Biotechnology companies, testing genetically modified organisms in Indian cotton fields, accuse local farmers of being "seed pirates" when they use part of one year's crop as seed for the next. And Hollywood executives make front-page headlines when their companies join forces to sell movies online, having been spurred into rare cooperation by their mutual fear of losing control of their intellectual property. So serious has the prospect of piracy become for them that in the United States the Digital Millennium Copyright Act has even outlawed the promulgation of algorithms that might be used to disable or circumvent copy-protection devices. A graduate student coming to Nevada to present a technical paper can be arrested, not for pirating anything himself, but for divulging principles that might allow others to do so. In today's global economy, there are not just pirate books, CDs, and videos, but pirate jeans, pirate motorcycles, pirate pharmaceuticals, pirate aircraft parts, and, of course, pirate Pokemon. One recent novel mischievously imagines the ruin of the entire U.S. economy after the source code of major proprietary software is released en masse onto the Net. "The Chinese never liked 'intellectual property,'" explains a Nobel laureate scientist in 2044, and they eventually "called our bluff." "So now, thanks to the Chinese, basic science has lost its economic underpinnings. We have to live on pure prestige now, and that's a very thin way to live."\ Implicit in that resigned lament is a recognition that information has indeed become a principal foundation of modern social, economic, and cultural order. As it has become the key commodity in the globalized economy, so control and management of information have vastly increased in overt importance. In the nineteenth century, manufacturing held the key to economic power; for much of the twentieth, energy occupied that position. Now knowledge and imaginative creativity seem to be challenging for primacy. Piracy is the biggest threat in this emerging economic order, and it is commonly represented as the biggest threat to it. A specter is haunting Europe, as a latter-day Engels might have written. Only it is not just Europe that is spooked, but the entire economic world; and the ghost looming before us is not a communist, but a pirate.\ Yet the problem is even thornier than that may imply, because it is not reducible to any kind of informational class war. The pirates, in all too many cases, are not alienated proles. Nor do they represent some comfortingly distinct outsider. They are us. Biotechnology companies certainly complain about seed piracy, for example—but also find themselves confronted by protests at their own alleged "biopiracy." The same charge is liberally hurled at high-tech "pharmers" in the West—the word here referring not to unscrupulous forgers of Web sites but to highly credentialed bioscientists and ethnobotanists traversing the tropics in their search for new medicines. In such cases, the institutions of scientific and medical research on which we depend are being denounced as pirates not for destroying intellectual property, but precisely for introducing it to places where it did not previously exist. It sometimes seems that there is only one charge that all players in the globalization game, from radical environmentalists to officials of the World Trade Organization, level at their respective foes, and that charge is piracy. Marking the repudiation of information capitalism at one extreme and its consummation at the other, it has become the definitive transgression of the information age.\ This makes piracy a compelling subject as well as an attractive one. Its consequences extend beyond particular cases, and beyond even the law itself, to impinge on the basic ways in which ideas and technologies are created, distributed, and used. Conflicts over piracy involve strongly held ideals of authorship, creativity, and reception. Society can therefore find itself forced to articulate and defend those ideals, and sometimes to adjust or abandon them. That is the common thread that ties together all our most important piracy debates, whether the specific allegations relate to gene patents, software, proprietary drugs, books, ballet steps, or digital downloading. What is at stake, in the end, is the nature of the relationship we want to uphold between creativity, communication, and commerce. And the history of piracy constitutes a centuries-long series of conflicts—extending back by some criteria to the origins of recorded civilization itself—that have shaped this relationship. Those conflicts challenged assumptions of authenticity and required active measures to secure it. They provoked reappraisals of creative authorship and its prerogatives. They demanded that customs of reception be stipulated and enforced. Above all, they forced contemporaries to articulate the properties and powers of communications technologies themselves—the printing press, the steam press, radio, television, and, now, the Internet.\ Yet setting out to rescue the history of piracy from obscurity may still seem a quixotic quest. While its present and future receive daily attention in the mass media, its past remains almost completely veiled. To be sure, a few isolated episodes are cited repeatedly: Charles Dickens haranguing American publishers for reprinting his novels; Hamlet answering his own question, "To be or not to be," with the phrase "Aye, there's the point" in an unauthorized quarto of Shakespeare's play; Alexander Pope assailing the Grub Street bookseller Edmund Curll for helping himself to Pope's letters. But these tend to be offered up as whimsical anticipations of our current predicament, or else as reassuring evidence that there is nothing new under the sun. The big questions—where piracy came from, how it developed and changed over time, what its consequences have been—have never been properly asked, let alone answered.\ There are two reasons for this. The first derives from received opinions about the digital and biomedical advances that are taking place all around us. Ours is routinely invoked as a moment of radical transformation—an information revolution that constitutes a clean break from all that has gone before. Therefore, if piracy is the definitive transgression of this moment, it too should be a phenomenon without a past. It could have a prehistory, but not a history. The most that one could expect to find in earlier periods would be episodes resembling modern practices in some charming but in the end inconsequential way. And so this is indeed all that we have found. The second reason bolsters this by supplying a rationale: that piracy is not really a subject at all. To jurists and policymakers in particular—but the impression is widely shared—it has a derivative status. It simply reflects the rise of intellectual property. To look for its history would be, on this assumption, futile in principle. The real subject would be intellectual property itself, and more specifically intellectual property law. That alone could have a real history to excavate.\ To be blunt, these assumptions are false in fact and iniquitous in their consequences. Piracy is not peculiar to the digital revolution—a revolution that is in any case pervaded by historical inheritances. Nor is it a mere accessory to the development of legal doctrine. Yet neither is it an offense of timeless character, universally definable by a priori criteria. It is far richer and trickier than that. It has its own historical continuities and discontinuities, and its own historical consequences. The relation of piracy to doctrines of intellectual property, in particular, must clearly be a close one; but piracy cannot be adequately described, let alone explained, as a mere byproduct of such doctrines. It is empirically true that the law of what we now call intellectual property has often lagged behind piratical practices, and indeed that virtually all its central principles, such as copyright, were developed in response to piracy. To assume that piracy merely derives from legal doctrine is to get the history—and therefore the politics, and much else besides—back to front.\ Granted that the subject exists, a problem of definition still dogs it. What is piracy? It is not entirely clear that we agree on the answer. An official study for the European Union once defined it rather impishly as whatever the knowledge industries said they needed protection from. There is a certain logic to that, as will become clear, and in the end it may even be the most adequate definition we can get; but it will scarcely do as a starting point. Nor, however, will the standard definition of piracy as the commercial violation of legally sanctioned intellectual property. This too falls short, because (unless we embrace a very wide notion of intellectual property indeed) it would exclude many instances in which piracy has been recognized to be going on, but where intellectual property per se is not at issue. The very concept of intellectual property did not really exist until the mid-nineteenth century, by which point there had been over 150 years of denunciations of "piracy." Even after that, there are many cases where too strict a definition in these terms would be prejudicial. One example concerns buses. In London, independent bus operators date back at least to the tourism boom that accompanied the Great Exhibition of 1851. Their vehicles were soon popularly termed "pirate" buses; a music-hall song called The pirate bus was popular for a while in the late Victorian era. They remained a presence on the city's streets beyond World War II. Only by stretching the term "intellectual property" to breaking point could a pirate bus fit the orthodox definition. To exclude such usages, however, would rob us of the opportunity to consider what pirate buses had in common with pirate radio, pirate publishing, and pirate listening —three other kinds of piracy that were also popularly recognized in the period, and which we shall encounter later. By the same token, a doctrinaire definition might actually force us to count as piratical certain instances of expropriation that contemporaries did not identify in this way. An obvious example would be America's wholesale redistribution of foreign companies' patents (those of allies as well as the defeated Germans) after World War I. The legality of this hugely important move was unclear, but few in the United States, at least, would have called it piracy.\ (Continues...)\ \ \ \ \ Excerpted from Piracy by Adrian Johns Copyright © 2009 by Adrian Johns. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.\ Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site. \ \

1 A General History of the Pirates 12 The Invention of Piracy 173 The Piratical Enlightenment 414 Experimenting with Print 575 Pharmaceutical Piracy and the Origins of Medical Patenting 836 Of Epics and Orreries 1097 The Land without Property 1458 Making a Nation 1799 The Printing Counterrevolution 21310 Inventors, Schemers, and Men of Science 24711 International Copyright and the Science of Civilization 29112 The First Pirate Hunters 32713 The Great Oscillation War 35714 Intellectual Property and the Nature of Science 40115 The Pirate at Home and at Large 43116 From Phreaking to Fudding 46317 Past, Present, and Future 497Acknowledgments 519Notes 523Index 593

\ Publishers WeeklyThe recording industry’s panic over illegal downloads is nothing new; a century ago, London publishers faced a similar crisis when “pirate” editions of sheet music were widely available at significantly less cost. Similarly, the debate over pharmaceutical patents echoes an 18th-century dispute over the origins of Epsom salt. These are just two of the historical examples that Johns (The Nature of the Book) draws upon as he traces the tensions between authorized and unauthorized producers and distributors of books, music, and other intellectual property in British and American culture from the 17th century to the present. Johns’s history is liveliest when it is rooted in the personal—the 19th-century renegade bibliographer Samuel Egerton Brydges, for example, or the jazz and opera lovers who created a thriving network of bootleg recordings in the 1950s—but the shifting theoretical arguments about copyright and authorial property are presented in a cogent and accessible manner. Johns’s research stands as an important reminder that today’s intellectual property crises are not unprecedented, and offers a survey of potential approaches to a solution. 40 b&w illus. (Feb.)\ \ \ \ \ Library JournalJohns (history, Univ. of Chicago; The Nature of the Book) meticulously demonstrates how the meaning of intellectual piracy—the appropriation of ideas and inventions without recompense—has changed over time. Related to product counterfeiting and patents, this unacknowledged borrowing has a history beginning with the printed book, with a legal copyright dimension first arising in 18th-century England. Johns suggests that piracy has often furthered progress by spreading ideas more widely, although it also undermines authenticity and has slowed the creation of new works. In America, piracy followed the territorial and industrial pattern of national development, e.g., uncompensated usurpation. Johns subtly points out the special component of illicit cribbing, with cross-border publications from Scotland and Ireland distressing authors in pre-U.K. England much as pirated items from China now perturb American producers. The author is both thorough and digressive to a degree that the general reader might not appreciate or readily comprehend without considerable prior knowledge and a dictionary. VERDICT Uniquely addressing copyright piracy from print to digital formats in a worldwide, historical context (albeit primarily concentrating on Anglo-America), this complex, fully annotated, rarefied study will find favor with serious readers, especially social, cultural, and scientific historians.—Frederick J. Augustyn Jr., Library of Congress\ \ \ Seed“It’s easy to assume, amid all the brouhaha about intellectual property, illegal downloading, and the internet in general, that the question of piracy was born with the web browser. But as long as there have been ideas, people have been accused of stealing them. In this detail-packed biography of fakery, science historian Adrian Johns describes one of the earliest attempts to protect authors’ rights—a vellum-bound book registry in the Stationer’s Hall in 17th century London—and examines everything from the Victorian crusade against the patent, to the radio pirates of the 1920s, to the telephone phreakers of the 1970s and the computer hackers of today. Piracy is not new, he concludes, but we are due for a revolution in intellectual property, and science may be its ideal breeding ground.”—Seed\ \ \ \ \ \ Inside Higher Education“While the rise of the Internet has given it new dimensions, the concept of intellectual piracy has existed for centuries, and the disputes of previous eras have much in common with those of our own time. In a new book, Piracy, Adrian Johns details the long history of the term and its battles, arguing that those who would shape the future of intellectual property should first understand its past.”—Inside Higher Education\ \ \ \ \ \ Times Higher EducationJohns makes a bold claim: disputes over intellectual piracy have touched on so many crucial issues of creativity and commerce, identity and invention, science and society, that tracing them amounts to ‘a history of modernity from askance.’ . . . More generally, Piracy shows us how the very notion of intellectual property—and its sharp division into the fields of patent and copyright—was created in response to specific pressures and so could be modified dramatically or even abolished. . . . ‘We are constantly trying to shoehorn problems into an intellectual framework designed 150 years ago in a different world.’”\ — Matthew Reisz\ \ \ \ \ \ NatureAdrian Johns argues that piracy is a cultural force that has driven the development of intellectual-property law, politics, and practices. As copying technologies have advanced, from the invention of printing in the sixteenth century to the present, acts of piracy have shaped endeavours from scientific publishing to pharmaceuticals and software. . . . Johns suggests, counter-intuitively, that piracy can promote the development of technology. The resulting competition forces legitimate innovators to manoeuvre for advantage—by moving quickly, using technical countermeasures or banding together and promoting reputation as an indicator of quality, such as through trademarks. . . . The exclusive rights granted by intellectual-property laws are always being reshaped by public opinion, and accused pirates have lobbied against these laws for centuries.\ — Michael Gollin\ \ \ \ \ \ Washington PostIn his invaluable book Piracy, Adrian Johns argues that the tendency of intellectual property battles to undermine privacy is not new. On the contrary, Johns . . . 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.\ — Jeffrey Rosen\ \ \ \ \ \ Inside Higher Ed.ucationWhile the rise of the Internet has given it new dimensions, the concept of intellectual piracy has existed for centuries, and the disputes of previous eras have much in common with those of our own time. In a new book, Piracy, Adrian Johns details the long history of the term and its battles, arguing that those who would shape the future of intellectual property should first understand its past.—Inside Higher Education\ \ \ \ \ Washington Post"In his invaluable book Piracy, Adrian Johns argues that the tendency of intellectual property battles to undermine privacy is not new. On the contrary, Johns . . . 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."\ \ \ \ \ \ Times Higher Education“Johns makes a bold claim: disputes over intellectual piracy have touched on so many crucial issues of creativity and commerce, identity and invention, science and society, that tracing them amounts to ‘a history of modernity from askance.’ . . . More generally, Piracy shows us how the very notion of intellectual property—and its sharp division into the fields of patent and copyright—was created in response to specific pressures and so could be modified dramatically or even abolished. . . . ‘We are constantly trying to shoehorn problems into an intellectual framework designed 150 years ago in a different world.’”\ \ \ \ \ \ Nature"Adrian Johns argues that piracy is a cultural force that has driven the development of intellectual-property law, politics, and practices. As copying technologies have advanced, from the invention of printing in the sixteenth century to the present, acts of piracy have shaped endeavours from scientific publishing to pharmaceuticals and software. . . . Johns suggests, counter-intuitively, that piracy can promote the development of technology. The resulting competition forces legitimate innovators to manoeuvre for advantage—by moving quickly, using technical countermeasures or banding together and promoting reputation as an indicator of quality, such as through trademarks. . . . The exclusive rights granted by intellectual-property laws are always being reshaped by public opinion, and accused pirates have lobbied against these laws for centuries."\ \ \