An excerpt from


The Intellectual Property Wars from Gutenberg to Gates

Adrian Johns

A General History of the Pirates

In mid-2004, executives at the Tokyo headquarters of the huge electronics multinational NEC began to hear reports that its products were being counterfeited and sold in Chinese stores. Nobody was at all surprised. Reports of this kind were routine for any corporation of NEC’s size and reach, and in this case they initially seemed to concern small stuff—blank DVDs and the like. The company nevertheless moved swiftly to put into action its standard response in such cases, hiring a firm called International Risk to look into the matter. There was no reason to suspect that this would prove to be anything more than yet another incident like all the others—irritating, no doubt, but impossible to suppress entirely. Piracy of this kind was the unavoidable price of doing business on a global scale.

Two years, half a dozen countries, and several continents later, what International Risk had unveiled shocked even the most jaded experts in today’s industrial shenanigans. They revealed not just a few streetwise DVD pirates, but an entire parallel NEC organization. As the real company’s senior vice president ruefully remarked, the pirates had “attempted to completely assume the NEC brand.” Their version, like the original, was multinational and highly professional. Its agents carried business cards. They were even recruited publicly by what looked like legitimate advertising. The piratical firm had not only replicated existing NEC goods, but actively invested in research and development to devise its own. Over time, it had produced an entire range of consumer products, from MP3 players to lavish home theater systems. These goods were of high quality, with warranties emulating NEC’s own (in fact, the conspiracy came to light only when users tried to exercise their warranty rights by contacting NEC). To manufacture them the impostor multinational had signed royalty arrangements with more than fifty businesses scattered through China, Hong Kong, and Taiwan, at least some of which seemed to believe they were working for the real NEC. And it had developed its own sophisticated distribution networks, allowing its products to reach a global market extending at least as far as Africa and Europe. If this was indeed, as the international press called it, the “next step in pirating,” then it was a very dramatic and impressive step indeed.

When news of the pirate NEC broke in mid-2006, the story quickly winged its way across the Internet. Readers and commentators in the blogosphere reproduced the original press reports many times over. They expressed dismay at the implications. But their dismay was often accompanied by a drop of schadenfreude. Now, they realized, none of them could really be confident that the “NEC” disk drives, chips, screens, or keyboards on which they were doing their blogging were what they claimed to be. Some found this ominous, because of what it implied about knowledge in general in the networked world. Others acknowledged those implications but were only too happy to profess that they found them appealing: here was a gigantic corporation coming a cropper at the hands of unbranded outlaws who had proved themselves faster, nimbler, smarter. The Net’s echo-chamber amplified the incident into a symbol of every cultural fear, epistemic doubt, and libertarian dream suggested by the digital age. Here, it seemed, was a glimpse of where everyday menaces like phishing and identity theft were inexorably leading.

This case of a doppelgänger multinational does indeed seem to mark some kind of culmination. It is hard to imagine a more spectacular act of piracy, unless perhaps one could conjure up a fake World Intellectual Property Organization. And in fact the venture came to light almost exactly on cue, just as impersonation of this kind had been identified as a growing piratical trend, set to succeed hacking and pharming as the mode of digital banditry du jour. “Brandjacking,” it was called. It had been even singled out as a looming problem by the CEO of International Risk—who, not coincidentally, was a longtime veteran of the Hong Kong police experienced in tackling human kidnappings. Such piracy, he had cautioned in public speeches, was fast becoming a fact of life for the electronics and pharmaceuticals industries, with a recognizable modus operandi. An episode generally began when a legitimate company licensed a factory to manufacture its goods; the brandjackers who stood behind the factory would then take the documentation involved in the license, duplicate it, and redeploy it in order to recruit other plants. These other operations often remained blissfully unaware that they were dealing with impostors. After all, the outlaws helped themselves to the very devices—affidavits, bills, forms, contracts—that are supposed to guarantee legitimacy in modern capitalism. Especially hard to fight were brandjackers who operated across national boundaries, particularly the strait separating Taiwan from mainland China. The authorities in the People’s Republic might well prove reluctant to prosecute local businesses that could plausibly claim to be acting in innocence. All of these vulnerabilities were exploited to the full by NEC’s evil twin.

NEC’s discomfiting experience throws into sharp relief the sheer range of phenomena that fall under the term “piracy” as it is nowadays used. They extend far beyond the piecemeal purloining of intellectual property. They reach, in fact, to the defining elements of modern culture itself: to science and technology; to authorship, authenticity, and credibility; to policing and politics; to the premises on which economic activity and social order rest. That is why the topic of piracy causes the anxiety that it so evidently does. Ours is supposed to be an age of information—even of an information revolution. Yet it suddenly seems as though enemies of intellectual property are swarming everywhere, and the ground rules for an information economy are nowhere secure. Universities find themselves havens for countless devotees of file-sharing software, making blithe use of services that the recording industry condemns flatly as piracy. Biotechnology companies, testing genetically modified organisms in Indian cotton fields, accuse local farmers of being “seed pirates” when they use part of one year’s crop as seed for the next. And Hollywood executives make front-page headlines when their companies join forces to sell movies online, having been spurred into rare cooperation by their mutual fear of losing control of their intellectual property. So serious has the prospect of piracy become for them that in the United States the Digital Millennium Copyright Act has even outlawed the promulgation of algorithms that might be used to disable or circumvent copy-protection devices. A graduate student coming to Nevada to present a technical paper can be arrested, not for pirating anything himself, but for divulging principles that might allow others to do so. In today’s global economy, there are not just pirate books, CDs, and videos, but pirate jeans, pirate motorcycles, pirate pharmaceuticals, pirate aircraft parts, and, of course, pirate Pokemon. One recent novel mischievously imagines the ruin of the entire U.S. economy after the source code of major proprietary software is released en masse onto the Net. “The Chinese never liked ‘intellectual property,’” explains a Nobel laureate scientist in 2044, and they eventually “called our bluff.” “So now, thanks to the Chinese, basic science has lost its economic underpinnings. We have to live on pure prestige now, and that’s a very thin way to live.”

Implicit in that resigned lament is a recognition that information has indeed become a principal foundation of modern social, economic, and cultural order. As it has become the key commodity in the globalized economy, so control and management of information have vastly increased in overt importance. In the nineteenth century, manufacturing held the key to economic power; for much of the twentieth, energy occupied that position. Now knowledge and imaginative creativity seem to be challenging for primacy. Piracy is the biggest threat in this emerging economic order, and it is commonly represented as the biggest threat to it. A specter is haunting Europe, as a latter-day Engels might have written. Only it is not just Europe that is spooked, but the entire economic world; and the ghost looming before us is not a communist, but a pirate.

Yet the problem is even thornier than that may imply, because it is not reducible to any kind of informational class war. The pirates, in all too many cases, are not alienated proles. Nor do they represent some comfortingly distinct outsider. They are us. Biotechnology companies certainly complain about seed piracy, for example—but also find themselves confronted by protests at their own alleged “biopiracy.” The same charge is liberally hurled at high-tech “pharmers” in the West—the word here referring not to unscrupulous forgers of Web sites but to highly credentialed bioscientists and ethnobotanists traversing the tropics in their search for new medicines. In such cases, the institutions of scientific and medical research on which we depend are being denounced as pirates not for destroying intellectual property, but precisely for introducingit to places where it did not previously exist. It sometimes seems that there is only one charge that all players in the globalization game, from radical environmentalists to officials of the World Trade Organization, level at their respective foes, and that charge is piracy. Marking the repudiation of information capitalism at one extreme and its consummation at the other, it has become the definitive transgression of the information age.

This makes piracy a compelling subject as well as an attractive one. Its consequences extend beyond particular cases, and beyond even the law itself, to impinge on the basic ways in which ideas and technologies are created, distributed, and used. Conflicts over piracy involve strongly held ideals of authorship, creativity, and reception. Society can therefore find itself forced to articulate and defend those ideals, and sometimes to adjust or abandon them. That is the common thread that ties together all our most important piracy debates, whether the specific allegations relate to gene patents, software, proprietary drugs, books, ballet steps, or digital downloading. What is at stake, in the end, is the nature of the relationship we want to uphold between creativity, communication, and commerce. And the history of piracy constitutes a centuries-long series of conflicts—extending back by some criteria to the origins of recorded civilization itself—that have shaped this relationship. Those conflicts challenged assumptions of authenticity and required active measures to secure it. They provoked reappraisals of creative authorship and its prerogatives. They demanded that customs of reception be stipulated and enforced. Above all, they forced contemporaries to articulate the properties and powers of communications technologies themselves—the printing press, the steam press, radio, television, and, now, the Internet.

Yet setting out to rescue the history of piracy from obscurity may still seem a quixotic quest. While its present and future receive daily attention in the mass media, its past remains almost completely veiled. To be sure, a few isolated episodes are cited repeatedly: 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 been—have 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 of what 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. 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 of piracy 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, by which point there had been over 150 years of denunciations of “piracy.” 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 tourism boom that accompanied the Great Exhibition of 1851. Their vehicles were soon popularly termed “pirate” buses; a music-hall song called The pirate bus was popular for a while in the late Victorian era. They remained a presence on the city’s streets beyond World War II. Only by stretching the term “intellectual property” to breaking point could a pirate bus fit the orthodox definition. To exclude such usages, however, would rob us of the opportunity to consider what pirate buses had in common with pirate radio, pirate publishing, and pirate listening—three other kinds of piracy that were also popularly recognized in the period, and which we shall encounter later. By the same token, a doctrinaire definition might actually force us to count as piratical certain instances of expropriation that contemporaries did not identify in this way. An obvious example would be America’s wholesale redistribution of foreign companies’ patents (those of allies as well as the defeated Germans) after World War I. The legality of this hugely important move was unclear, but few in the United States, at least, would have called it piracy.

This is an apparent problem that can be turned to real advantage. It is certainly true that the nature of piracy has changed over time. For that reason, we need to respect its historical meanings rather than imposing its current one on our ancestors. Accordingly, some person, thing, or act has to have been characterized as piratical by contemporaries themselves in order for it to count as such in this book. But at the same time, we cannot simply take such characterizations at face value. Those who were called pirates almost never did: they always repudiated the label as inaccurate and unjust. The point is that when they did so, they often triggered debates that threw light on major structural issues and had major consequences as a result. We can profit by focusing on precisely these contests—and the more prolonged, variegated, and ferocious they were, the better. They strained relations between creativity and commercial life, and at critical moments caused them to be reconstituted. The history of piracy is the history of those transformations. Every time we ourselves buy a book, download a file, or listen to a radio show, our actions rest on it.

Piracy and the Printing Revolution

The period of time that we need to traverse is a long one, but it is not indefinitely long. For although appropriators of ideas may always have existed, societies have not always recognized a specific concept of intellectual piracy. Far from being timeless, that concept is in fact not even ancient. It arose in the context of Western Europe in the early modern period—the years of religious and political upheaval surrounding the Reformation and the scientific revolution. In particular, it owed its origin to the cultural transformations set in train by Johann Gutenberg’s invention of the printing press. At the origin of the history of piracy thus lies one of the defining events of Western civilization.

Printing posed serious problems of politics and authority for the generations following Gutenberg. It was in the process of grappling with those problems that they came up with the notion of piracy. At their heart was the question of how to conform the new enterprise to their existing societies. For, following Gutenberg’s first trials in Mainz in the mid-fifteenth century, printing had spread rapidly to the major European cities. It was a rapidly expanding and potentially revolutionary activity, and it would eventually inaugurate a transformation in practices of authorship, communication, and reading. But in the shorter term, in the fifteenth and sixteenth centuries, contemporaries could and did find ways to apprehend the press in terms relatively familiar to them. At the heart of printing, as they saw it, was a practical activity—a craft. It was a fast-growing and in some ways extraordinary one, to be sure, but it was still a craft nonetheless. And that suggested how it could be accommodated.

Early modern people knew how crafts should be organized, conducted, and regulated so as to take their place in an orderly commonwealth. The practitioners of the press, therefore—ranging from the great scholar-printers of Renaissance Italy to the first denizens of Grub Street—organized themselves into communities large and small, along lines familiar from existing crafts. They established “chapels” of journeymen in their houses, and formed guilds or companies to handle the affairs of the book trades as a whole in particular cities. At the same time, ecclesiastical, academic, and royal authorities devised their own systems to render these communities safe and responsible. To an extent, these too tended to be built on prior experiences. A 1547 French law decreeing that the author and printer be named on the title page of every religious book, for example, was modeled on the long-standing tradition of craftsmen’s marks in such trades as silversmithing. Other measures were more original—there was little precedent for the practice of licensing books before they could legitimately be published, and none for the Vatican’s Index of Prohibited Books. At each level, and at places ranging from the printing house and bookshop to the bishop’s palace and scholar’s study, skills came into being and accreted into customs. They took on moral force. In those first generations, as printers, booksellers, writers, and readers jockeyed for position and developed conventions of proper conduct, so the character of printing itself—what printing was—emerged.

Uncertainty and the need to make choices dogged this process, to an extent that has tended to be forgotten. To many people of the early modern period the press looked like it should be an engine of progress and providence, certainly, and Protestants of the later sixteenth century largely came to believe that it had been one in the days of the Reformation. But when it came to their own time and place, they had reason to be less sanguine. There was no guarantee that printers and booksellers, left to themselves, would let the printed book realize what others took to be its potential. Unauthorized reprinting was only one of the problems. There is ample evidence that laypeople’s experience of printing included, alongside wonder at its virtues, exasperation at the proliferation of spurious claims to authorship, authenticity, and authority to which it gave rise. The realm of print was one in which the bogus could easily crowd out the genuine, and in which credibility vied with credulousness. Telling the authorized and authentic from the unauthorized and spurious was only one necessary art for thriving in the world of print, but necessary it was. Being a good reader demanded this kind of critical expertise. Writ large, the possibility that print itself might uphold some kind of rational public depended on it too.

The first and greatest of all novels provides powerful testimony to this effect. The entire second volume of Don Quixote amounts to a sharp satire on the nature of print a century and a half after Gutenberg. It delights in a recursive humor based on the conditions of life as an author, editor, reader, and even character in a realm of print riddled with such problems. Produced after a spurious sequel had been published in Tarragona, Cervantes’ volume has its hero repeatedly encounter readers of the spurious volume and characters from it. Indeed, the plot itself turns on this. Don Quixote alters his course, heading to Barcelona rather than Zaragoza, solely in order to depart from the story of the unauthorized book and therefore prove it inauthentic. Once in Barcelona, he enters a printing house and finds the workers engaged in correcting the impostor book itself. And at the end of the tale Don Quixote dies, just (or so Cervantes says) to make certain that no more bogus sequels can be foisted on the public.

The premise of Cervantes’ novel, of course is that Don Quixote is a naively literal reader of popular print, in the form of chivalric romances. So it is all the more important to acknowledge that the knight-errant is not quite straightforwardly credulous. When challenged, he can uphold his faith. The point is that he does so by appealing to exactly the mechanisms that in the Europe of 1600 were supposed to guarantee a certain veracity in printed books. When told that romances are “false, untrue, harmful, and of no value to the nation,” and that they should certainly not be imitated in one’s life, Quixote thus has a ready answer. “Books that are printed with a royal license and with the approval of those officials to whom they are submitted, and read to widespread delight, and celebrated by great and small, poor and rich, educated and ignorant, lowborn and gentry, in short, by all persons of every rank and station; can they possibly be a lie”? Licenser and public, elite and people, all concurred. What greater authority could there be?

Don Quixote appeals here to a mechanism that was widely adopted to bring the craft of print into harmony with political order: the license. A license was a statement of approval issued by a state or ecclesiastical officer, and in most countries one was required before any book could be published. In practice the rule was often ignored, and the very fact that Cervantes puts these words in Quixote’s mouth demonstrates the difficulty that any licensing system faced if it really meant to impress readers. How effective it was, either in suppressing dangerous or false books or bolstering orthodox ones, is doubtful. But the mechanism operated in close conjunction with two other devices that were to prove critically important for our story: patents and registers. Patents were open letters from a ruler that had been used in the Middle Ages for many different purposes. Within a generation or two of the invention of the press they were being sought to protect titles from unauthorized reprinting; the first is thought to be that issued in Venice in 1486 to Marcus Sabellicus for his history of the city. In every respect, this kind of “privilege” was equivalent to one granted for a mechanical invention, for a newly imported craft, or for a monopoly in a trade. It would continue to be applied to books for centuries. A register, meanwhile, was a book in which printers and booksellers of a particular city entered the titles of works they intended to publish. Its purpose was to maintain communal order, and at the same time to uphold the reputation of the craft community. Contests over particular editions could be resolved by booksellers and printers by reference to these registers, leaving the impression that the trade was inherently orderly. In some cities, entries in registers became secure enough to act as de facto properties, enduring for generations.

All later literary property regimes can be traced back to these two mechanisms. In tandem with licensing, they acted to shape the identity of print and the nature of the book in early modern European commonwealths. But at a fundamental level they were hard to reconcile: one appealed for its authority to the prerogatives of a state, the other to the autonomy of a craft. One aimed at securing interests within the commonwealth, the other at securing interests within the trade. Implicit in the tensions between them was therefore a major unresolved problem of political authority. That problem plagued sixteenth- and seventeenth-century regimes as the first recognizably modern states came into being. It set craft and economic interest against monarchy and conventional morality. In the realm of print, when the clash happened, the invention of piracy would be the result.

Pirate Principles

Piracy and literary property both originated as phenomena of the press. And both would remain deeply entwined with the fortunes of print until new media began to proliferate around 1900. We cannot even ask the right questions of our own culture, let alone answer them, without grasping how they took shape in that earlier age. In particular, the history of piracy is a matter of not just precepts but practices—artisanal crafts, policing strategies, ways of reading, and the like. As we trace these practices through the generations, we often find ourselves in the province of conventions and customs rather than laws, and those conventions and customs sometimes originated long ago. Their impact has been great and lasting even though they long remained largely unwritten. The most important case in point is that of the so-called courtesies that arose in the early modern book trade to govern what was then called “propriety.” All civilized book-trade members were supposed to honor these customary principles. They pervaded the realm of print, and shaped that realm along with the more formal practices of licensing, patenting, and registration. Although they had little, if any, legal weight, there is ample evidence that they were respected by printers and booksellers and seen as a basis for harmony in their community. To breach them was not just to violate a particular rule but to dishonor print itself. When contentions over patenting and registration led to the invention of piracy, therefore, the book trade attempted repeatedly to counter the new offense by appealing to its courtesies and updating them. Piracy and propriety evolved together as they did so. The effects of courtesies would persist long after they themselves had retreated from prominence, either by being abandoned or by becoming second nature. Early broadcasting, recording, and digital media all inherited elements from them, and defenders of digital piracy today sometimes unwittingly adopt arguments that descend from the courtesies of Milton’s age.

It is fascinating to consider in this light what it takes to become an expert reader (or viewer, or listener) in a piratical environment. What skills equip someone for that role? In some circumstances, the most disturbing thing for authors and owners is that it requires no special skills at all. Reading a piracy may be exactly the same as reading an authorized work. The implications of piracy in such cases are huge precisely because for the user, at least, the fact of a work’s being pirated makes no difference. This sometimes (but not always) seems to have been taken as true in the eighteenth century, for example, when unauthorized reprints spread enlightenment across Europe. That is interesting because the reprints could in fact differ quite markedly from their originals, and occassionally readers exhibited quite sophisticated forensic skills in appraising degress of authenticity. The same goes for today’s global economy. I know from experience that one watches a DVD of Fanny and Alexander bought from a street vendor in Beijing without fearing that one may be missing something aesthetically essential, even though the next disk in the pile may turn out to be a completely spurious imposter. In other instances, however, the practices of reception have been very different. Think of what it meant in the 1960s for Londoners to tune their transistor radios to pirate radio—casual, commercial, and pop -focused—rather than to the official, safe, and staid Light Programme of the BBC. Fidelity of reproduction—the ability to replicate an original to a given degree of accuracy—is clearly not all-important. Piracy in practice is a matter of the history of reception as well as production.

It is a matter of the geography of those practices too. Piracy has always been a matter of place—of territory and geopolitics—as well as time. Early modern English law, for example, came close to defining an illicit book by the location of its manufacture. Legitimate volumes were printed in the worker’s own home; any printed outside the home were suspect. On a larger scale, until the nineteenth century reprinting a book outside the jurisdiction of its initial publication was perfectly legitimate, as long as the reprint remained outside. The flourishing reprint industries that grew up in eighteenth-century Ireland, Switzerland, and Austria—and that provided for that extensive distribution on which the Enlightenment depended—were entirely aboveboard. As soon as it was reimported, however, the same book became a piracy. That is, piracy was a property not of objects alone, but of objects in space. A given book might well be authentic in one place, piratical in another. Of course, this made piracy a participant in the development of a system of interacting nation-states: where a city in the Low Countries could reprint French books freely in the early modern era, the new country of Belgium found itself a pariah for doing the same in the mid-nineteenth century. The practice itself therefore became a vehicle for national, and nationalist, passions. The Irish reprint trade saw itself as a bulwark of that nation against English depredations, and the American reprinters of the nineteenth century married their practices to an entire political economy on this basis. Indeed, the invention of copyright itself was largely a response to a piracy feud overflowing with national resentments, namely the attempt of Scottish reprinters to compete with London’s book trade in the first generation when both lived in a “united kingdom.” Today we again see these territorial concerns loom large in our own debates about patenting and biopiracy, in which they are denounced as forms of “neocolonialism.”

Extrapolation from such examples has given us the nearest thing we have to a hypothesis about the development of piracy itself. It sees piracy as essentially a phenomenon of geopolitical thresholds. Piracy’s location, on this view, always lies just beyond the sway of the civilizing process. So, for instance, it was reputedly rife in the main thoroughfares of Shakespeare’s London, and in the backstreets of Milton’s. In the eighteenth century it moved successively to the suburbs, to the provinces, and then to neighboring countries. In the nineteenth its home became America (and Belgium), and in the twentieth it lodged in Japan, followed by China, and now Vietnam. In each case, as it moved further from its original point, laws and norms of intellectual property took hold in the newly un-piratized territories. Piracy emerges, apparently, when developing economic agents live in proximity to great commercial centers. It is therefore identified with the barbarians at the gates, and with what Russians call the “near abroad.” It is accordingly destined to be superseded through the civilizing process that leads to a neoclassical, globally integrated economy.

This is all a myth, of course. Piracy has not been superseded in the developed world—indeed, its impact there remains comparable to that in developing nations—and the globe has seen more than one trajectory to more than one way of being modern. Yet the myth matters. The notion of a dissolving frontier between us and them creates real consequences—but consequences that we need to confront, not assume. My hope in devising this history is to suggest ways to do that. In particular, showing that piratical practices have depended on how people understood such things as borders, domestic thresholds, and the nation challenges the axioms on which the geopolitical hypothesis rests. But at the same time it also offers a way of comprehending the appeal of that hypothesis itself. What it cannot do—no one book could—is detail what should supplant it in locally specific terms. It would be fascinating to have a detailed account of the Chinese case, for example, or of Japan, Vietnam, or the ex-Soviet bloc. I cannot supply these. But I can hope to exemplify an approach that we will need to adopt to create those accounts.

The same goes for attempts to address the current crisis of intellectual property itself. Here, perhaps, is where a historical approach to piracy has its most significant consequences. It tells us that piracy is deeply enmeshed in the world we inhabit—and that the same goes for responses to piracy too. Their history is in a sense the history of modernity itself, viewed not quite from below, but from askance. I hope that readers who make it to the end of this book will come to feel that efforts to combat piracy which do not acknowledge this need to be treated with informed skepticism. Being ill conceived, they are generally ineffective. Worse still, they can neglect some historically constituted relationships and damage others. At an extreme, they can even threaten some of the elements of modernity that we most prize, because we take them to be central to life in a decent society. Examples are not lacking of antipiracy practices that pose questions of this order, potentially as serious as those suggested by the fake NEC. When a California company sets up a spurious bit-torrent site in a bid to snare the unwary downloader, the lay observer can be forgiven for failing to see at first which is the real pirate. When a multinational media corporation quietly installs digital-rights software into its customers’ computers that may render them vulnerable to Trojan horse attacks, what has happened to the customer’s own property rights—not to mention privacy? When a biotechnology company employs officers who turn agents provocateurs in order to catch unwary farmers in the act of “seed piracy,” one may wonder where the authenticity and accountability lie. It is not new for problems of privacy, accountability, autonomy, and responsibility—problems at the core of traditional politics—to be enmeshed in those of intellectual property. But to account for that fact demands a specifically historical kind of insight.

In short, the nexus of creativity and commerce that has prevailed in modern times is nowadays in a predicament. Its implications begin with intellectual property, but extend far beyond intellectual property alone. They may well foment a crisis of democratic culture itself. It is hard to see how the situation can be resolved satisfactorily without changing the very terms in which society understands intellectual property and its policing. That is, history suggests that a radical reconfiguration of what we now call intellectual property may be approaching, driven on by antipiracy measures as much as by piracy itself. Such an outcome is not inconceivable. Equally profound changes in the relation between creativity and commerce have certainly taken place before. In the eighteenth century, for example, copyright was invented, and in the nineteenth century intellectual property came into existence. A few decades from now, our successors may well look back and see a similar transformation as looming in our own day. If we wish to delay or even forestall such an outcome—or if we hope to steer the process as it happens—then we will be wise to change the approach we take to piracy. Even to pose that possibility calls for a historical vision. A response will require us to put that vision to use.

Copyright notice: Excerpt from pages 1–15 of Piracy: The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns, published by the University of Chicago Press. ©2009 by The University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press. (Footnotes and other references included in the book may have been removed from this online version of the text.)

Adrian Johns
Piracy: The Intellectual Property Wars from Gutenberg to Gates
©2009, 640 pages, 40 halftones
Cloth $35.00 ISBN: 9780226401188
Also available as an e-book

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