Piracy: The Intellectual Property Wars from Gutenberg to Gates

  • Adrian Johns
University of Chicago Press: 2010. 640 pp. $35, £24 9780226401188 | ISBN: 978-0-2264-0118-8

By allowing scientists, inventors and artists to assert property rights over their creative work, the intellectual-property system rewards the investment of time and money required to bring ideas to market. Piracy, or unauthorized copying, of creative works is usually seen as a simple violation of commercial rights, with pirates as thieves.

Historian Adrian Johns argues instead 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.

The cinchona plant was targeted for illicit export as it contains the antimalarial compound quinine. Credit: BLICKWINKEL/ALAMY

Pirates duplicate an innovative idea, publication or thing, ignoring the objections of contemporaries who assert a dominant right. Arguments against piracy have changed little over the centuries: pirated books, machines, medicines and software are criticized as being dangerous or inferior to authentic ones; pirates destroy the social fabric of creativity by denying innovators their due compensation; pirates stand outside moral and legal norms. Industry giants attack companies who make cheap copies of drugs and software as pirates, and conservation organizations berate those who collect indigenous genetic material, particularly from the tropics, as biopirates.

But piracy has always had its supporters. Printers in revolutionary America saw their copying of British works as resisting an oppressive government, and some pirates today see themselves as patriots fighting foreign domination. Pirates champion the rights of private individuals against governments or monopolistic corporations — by making available unauthorized copies of movies, for example. Pirates claim to promote the flow of information in a free society, and to serve the poorer sectors of society with lower-priced drugs, hardware 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. In the nineteenth century, US policy encouraged the free use of foreign technology to promote immigration and invention by talented craftspeople, scientists and engineers.

Today's debates about publishing genetic sequences in databases and the drive for open-access scientific journals have a history that is as old as printing. London's physicians joined together to publish the first national pharmacopoeia in 1618 as a way to avoid pirated drug formulations. Ironically, that book made it easier for others to copy the formulations in it, and the book itself was pirated. The evolution of peer-reviewed journals helped to distinguish authentic authors and inventors from the outsiders who copied their scientific works and instruments. But publication also aided copying, and the possibility of piracy became a rationale for introducing copyright and the patenting of scientific work to protect its commercial potential.

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. The strongest form of their argument — that all property rights should be eliminated in publications, ideas and objects — has not prevailed, except briefly during the French Revolution. Less radical ideas have been adopted into law, including the copyright defence of fair use and the compulsory licensing of patent rights on important inventions such as drugs. Governments have backed copyright-royalty tribunals to ensure distribution of music revenues to the copyright holders, and have instituted alternatives to privately funded innovation, such as state funding of research.

Piracy has led commerce to adopt countermeasures. Private, self-policing business associations were established as early as the seventeenth century, when booksellers formed their own registry of publications. In revolutionary America, printers such as Benjamin Franklin banded together, and today, international trade associations fight piracy for the recording, movie, pharmaceutical and agricultural industries.

Private associations can derive from piratical groups. Johns traces historical overlaps between pirate radio operators in the 1920s, ham radio operators of the 1960s, the 'phone phreakers' of the 1970s — who exchanged techniques for making free, long-distance phone calls — and the Homebrew computer club in the San Francisco Bay area of California, in which the sharing of ideas helped to incubate the personal computer. The open-source and open-access communities promote information sharing using sophisticated practices that avoid the label of piracy and its legal consequences, which has helped them to become accepted in parts of the commercial and technological establishment.

Today's intellectual-property system is built on decisions made in the past. In revealing how piracy affected those decisions, Johns's history provides a valuable addition to the literature. However, the book does not deal with the future implications of piracy. Lacking a practical understanding of current intellectual-property law and practice, Johns is unable to draw lessons or make predictions or recommendations.

Piracy is an aspect of intellectual-property dynamics that scientists, lawyers, policy-makers, business people and consumers should understand. When pirates gain the upper hand, innovators suffer and quality declines. But when exclusivity becomes too strong, society loses the benefits of access. A constant effort is required to balance the interests of innovators and copiers, and to nurture a healthy creative environment.