Tuesday, April 21, 2009

On pirates, infringers and the choice of words

Much ink and bytes have been devoted to the issue of the ruling against the Scandinavian site Pirate Bay and it could be argued that there is no much point of analyse it again here, for extemporaneous and for repetitive. However, it is a good opportunity to reflect on the use, or better said misuse, of the word pirate within the context of IP law and the clear intentionality that such use encompasses. It is also a good example of how many times (far too many) those trying to oppose a state of affairs, although well intentioned, reinforce some of the negative aspects of what they are trying to resist. The use of the word “pirate” in Pirate Bay clearly exemplifies this situation, because acknowledges, confirms and legitimizes the use of a word in a context that should have never been used in the first place. But those that promote the hypertrophy of intellectual property rights have not chosen it lightly or naively.
Under international law piracy can be said to correspond to the original reference to some form of universal jurisdiction, for which it was a crime that violated jus cogens, a set of principles so strong that are considered to be above any of the sources of law enumerated in art 38 of the Statute of the International Court of Justice. Pirates were considered to be hostis humani generis, o enemies of the entire humanity. Furthermore, piracy constituted one of the few exceptions to the principle of extra territorium jus dicenti impune non paretur impune, allowing anyone to prosecute pirates even in the high seas… So, faced wit the reality that their business models were obsolete and they couldn’t or they didn’t want to adapt to the new realities of sharing more freely the creations of the mind, the owners of industries that base their competitiveness on some form of distortive protection granted by the state discovered that one of the forms of getting governments on their side was to label those infringing those grants, now converted into rights, as pirates converting them automatically in the scum of the earth... But reality always bites…

Under the current circumstances, where the real piracy has made a comeback and industries and countries are facing real losses, both in economic resources and human lives (and not some fictional numbers that change everyday according to the audience), the continuation of the use of the word pirate to refer to copyright infringement is simply preposterous. It is time to recognize that copyright infringers are copyright infringers and that calling them pirates should amount to some form of defamation…

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