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The Real IP Pirates

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It’s bad enough that IP advocates dishonestly use the word “theft” to describe use of your own property in contravention of a monopoly issued by the state. (After all, as Nina Paley reminds us, copying is not theft; when you use information to guide your action or configure your own property, the originator of the idea still has it.) But use of the word “piracy” to describe pattern-copying is going too far. Real pirates storm boats, rape, loot, murder; they break things; they leave the victims dead, injured, enslaved or at the least missing many former possessions. Modern IP “pirates,” of course, do none of these things.

So it is indeed ironic that in there is a connection between IP and real piracy: namely, they go hand in hand.

Patent and copyright originated in the machinations of sovereigns (monarchs, etc.) to win the loyalty and services of entrepreneurs and artists. “Letters Patent” and later copyrights were exclusive monopolies protecting various goods and services and their authors or purveyors for a period of time. As Historian Patricia Seed notes:

The word “patent” comes from the Latin patente, signifying “open.” Letters patent are open letters, as distinguished from letters close, private letters closed up or sealed. Letters patent came from a sovereign … and were used to … confer a right, title, or property, or authorize or command something to be done.

In fact, Letters Patent were used by the British Crown to entice pirates to become “privateers” (a fancy name for legitimized piracy), by giving them a monopoly over some of the spoils of their piracy for a given time. A notorious example is Francis Drake (I won’t call this slaver and pirate “sir”) who was given a Letter Patent March 15, 1587 to authorize his piracy, such as attacking Spanish ships sailing back from South America laden with silver, handing it over to the Queen after taking his share. (See David Koepsell, Let’s Get Small: An Introduction to Transitional Issues in Nanotech and Intellectual Property.) According to Wikipedia, Maritime History of England, Drake

made the first English slaving voyages, taking Africans to the New World. Drake attacked Spanish ships sailing back from South America laden with silver. He took their treasure for himself and his queen. He also raided Spanish and Portuguese ports. He undertook a circumnavigation of the world in 1572 and 1573. He discovered that Tierra del Fuego was not part of the Southern Continent and explored the west coast of South America. He plundered ports in Chile and Peru and captured treasure ships. He sailed up to California and then across the Pacific Ocean to the East Indies. He returned to England with his ship full of spices and treasure, so gaining great acclaim.

In other words, patents were originally used to authorize actual piracy. So it is ironic that modern defenders of IP claim to be opposed to IP “pirates”—even though real pirates (like Francis Drake) kill people, break things, and take things from people (and delivered slaves into bondage), while “information pirates” do none of these things.

Of course, Letters Patent evolved into modern patents. At first employed sporadically by monarchs, later they became “democratized” as part of entrenched and more predictable state institutions. (One of the first patent statutes was England’s Statute of Monopolies of 1624.)

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