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By Root 2154 0

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 beenhave 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 ofwhat 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.6 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 ofpiracy 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, bywhich point there had been over i5o years of denunciations of "piracy"7 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