When I hear the word “pirate” the first thing I think of is Robert Louis Stevenson’s Treasure Island, which then leads me in circular fashion to consider Long John Silver’s ancient and over-vocal parrot (Cap’n Flint), the problem of inheritance, and how Jim Hawkins is eerily reminiscent of Hemingway’s own youthful narrator, Nick Adams. Invariably this rumination ends with me falling out of bed to the parrot’s deafening screech: “Pieces of Eight! Pieces of Eight!! Put the kettle on!! You’re late! You’re late!!”
Putting aside the ample body of literature dealing with piracy (e.g., Mutiny on the Bounty; The Caine Mutiny; The Island), I am compelled to point out that piracy has a long and storied tradition outside the realm of sea adventures or the notorious exploits of Captain Blood. Indeed, the practice of labeling the infringement of exclusive rights in creative works as “piracy” predates statutory copyright law, hearkening back some five centuries to 1557, when the Stationers’ Company of London received a Royal Charter giving it a monopoly on publication. Those who violated the charter were labeled pirates as early as 1603. With the establishment of copyright law in Britain in 1709, the term “piracy” was expanded to include not only swashbuckling mustachioed types who made overly free with the property of others, but also those misguided souls who specialized in the unauthorized manufacture and sale of copyrighted works. For those of you who are technical-minded and suffer from a need for minutia, Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term piracy in relation to copyright infringement, stating in pertinent part that : “Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection.” The law remains virtually unchanged since 1886, as is apparent from even a cursory review of Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which imposes criminal sanctions in cases of “wilful trademark counterfeiting or copyright piracy on a commercial scale.”
But enough of being didactic.
As all of you who have ever watched a DVD know, each Blu-Ray begins with an unskippable anti-piracy blurb that equates copyright infringement with raiding of the sort that destroyed the rain forests and filled Billy Bones’ sea chest with endless handfuls of gold doubloons. Which is only to be expected when copyright owners refer to copyright infringement as “theft.” As a matter of law, however, copyright infringement does not refer to actual theft, where the pasha’s necklace is purloined by Peter O’Toole after he returns from a star turn with Audrey Hepburn in How to Steal A Million, but refers rather to any instance — however boring or mundane — in which a person exercises one of the exclusive rights of the copyright owner without authorization. Thus, the act of photocopying a textbook to share with your impoverished young cousin, however altruistic and reasonable it may seem, constitutes copyright infringement rather than theft (while stealing the book from the library, on the other hand, still counts as stealing, as you might expect).
And thus we come to the end of our meandering sermon, whence we are obliged to remind you that copyright infringement doesn’t make you a thief, nor a real pirate, but only a lowly infringer — the kind of man who trembles in the company of brave-hearted™ cutthroats such as the legendary Bluebeard (or even Lucky Jack Aubrey), and who, if discovered hiding in the midst of such august company, would be flogged within an inch of his life before finally being allowed to escape into the Sea of Sorrow in a broken-down dinghy with Captain Bligh and a stale biscuit.
And maybe a paddle.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.