What the history of digital piracy tells us about intellectual property, copyright law, and the digital pirates of today.
In an honest service there is thin commons, low wages, and hard labor; in [piracy], plenty and satiety, pleasure and ease, liberty and power; and who would not balance creditor on this side, when all the hazard that is run for it, at worst, is only a sour look or two at choking.
—Pirate captain Black Bart Roberts, circa 1720
Just pirate it.
—Game designer Notch’s advice to Minecraft fans who can’t afford the full version, 2012
Once the heroes of nations, pirates went from being state-sponsored champions to tolerated annoyances to the basest sort of criminals. Henry Morgan was knighted after plundering Panama in 1674. Fifty years later hundreds of pirates were dangling from the gibbet at remote trading posts along Africa’s Gold Coast.
The change wasn’t so much what pirates did as the context in which they found themselves: a global market economy with England at its head. England went from a plucky backwater to a capitalist empire in a century, and as its fortunes changed—or more specifically, as the way it made its fortunes changed—so, too, did the way the state treated piracy.
It was one thing when looted Spanish gold filled the Queen’s meager treasury; it was quite another when pirates threatened to disrupt the increasingly disciplined circulatory system of the Atlantic Ocean, which had become the center of the British economy. Sugar, tobacco, slaves—these commodities needed to move and be exchanged as smoothly as possible. Pirates represented a dual threat to the Atlantic Ocean factory of early capitalism. They were not only thieves; they were also free.
Pirate ships were under worker control. Captains weren’t absolute rulers, but elected leaders who commanded only during battle. Day-to-day operations were handled democratically by the entire crew. Loot was divided equally and immediately, and pirates ate—and drank—better than their law-abiding contemporaries. This was the major reason pirates were feared: it was easy to convince exploited sailors to join up with them. And join up they did.
Pirate crews were a polyglot, multiracial multitude that included oppressed Irishmen, escaped slaves, French heretics, and members of Caribbean indigenous groups. Pirates hailed from all over the Atlantic and Mediterranean, and included a high proportion of blacks and mulattos, who often had leadership roles. Marcus Rediker notes in Villains of All Nations that 60 members of Blackbeard’s crew of 100 were black.
Pirates didn’t just plunder ships; they enforced their own brand of justice across the Atlantic. Upon boarding a ship, pirates interviewed the crew to determine how their captain commanded. If he were said by his crew to be cruel, the pirates might beat or execute him; if he were fair, they treated him well and sometimes they sent him off with a bit of money of his own. Sometimes their justice was poetic, such as when pirates commandeered a slaver, armed the captured Africans with knives, then sent the hapless captain back on his merry way. Pirates also held grudges, assaulting trading posts and towns where authorities had executed their comrades. After a fellow pirate captain was executed at a Portuguese slave fortress, Walter Kennedy stormed the castle, captured it, and burned it to the ground. Not for nothing did so many pirate vessels contain the word Revenge in their names.
Media piracy, the now-mundane practice of streaming a TV show or downloading an mp3, seems a far cry from the life-or-death struggles of buccaneers on the high seas. But the history of media piracy in the United States is similar to that of seafaring pirates. In the early days of the republic, lacking international copyright treaties, the U.S. government encouraged pirating of British literary classics in order to promote literacy. Authors like Charles Dickens complained to no avail; not until American literature caught up in quality and appeal could authors like Mark Twain and Harriet Beecher Stowe persuade the U.S. government to enforce copyright. By their time the U.S. had become a scientific and cultural powerhouse in its own right, and it sought to protect its advantage by enforcing property rights more strictly than it had before. The book publishers who once flooded the continent with cheap copies of the great works of literature had to go legit.
A similar change has happened in our own era. Patents, copyrights, and trademarks are the legal apparatuses that turn music, movies, and medicines into “intellectual property.” Infringements were tolerated, or at least compromises were worked out. A small surcharge built into the price of cassettes was the tribute thousands of homemade mixtapes paid to the record industry cartel. But in the internet age, no quarter has been given. Fan remixes are summarily removed from the web, even if they fall under legally protected fair use. A grandmother displaced by Hurricane Rita and a disabled single mother have been terrorized with lawsuits; the young operators of NinjaVideo were prosecuted and given prison sentences merely for linking to—not hosting—copyrighted material.
Just as the demonization and eventual destruction of the Atlantic pirates stemmed from the growing importance of maritime trade, the crackdown on digital piracy is linked not just to the fortunes of any one industry such as music or film, but to the fate of the economic system as a whole. Intellectual property makes up 80 percent of the net worth of U.S. corporations and 60 percent of their exports. These rights secure streams of tribute from wherever our pharmaceuticals are purchased, wherever our software is used legally, wherever Hollywood films are shown, resold, or spun off into merchandise. This is the so-called “knowledge economy,” a term that points less to global capitalism as a whole than to the American position in the international division of labor.
Piracy has been a part of the internet since it left the confines of the military-industrial complex and entered the worlds of commerce. Once people get hold of any new medium, they set about doing all the wrong things with it, experimenting with blasphemy, pornography, and political radicalism. And so it was with the internet. As soon as commercial software was available, groups of disciplined, organized volunteers emerged to destroy it. They were software pirates, and in their dialect they called their ill-gotten goods “warez.” They called themselves The Scene.
Piracy, the appropriation of private property in the form of copyright infringement, threatens this economy, just as Atlantic pirates threatened slave-capitalism in the early 18th century. And the source of the threat is identical: the very workers crucial to those industries. The earliest software pirate groups were self-organized clusters of skilled programmers and computer enthusiasts who tested their abilities by reverse-engineering protections on proprietary software, “cracking” it and rendering it “warez,” useable to anyone who downloaded it. Many of these individuals came from the software industry itself, where they were underpaid, unchallenged, or otherwise unfulfilled. They found their fulfillment in collaborating with others to release warez faster than any other pirate group. This organizational model has spread to the online piracy of other media, such as movies and music.
Just as the old pirates used commandeered ships against Atlantic trade, online pirates use their workplace infrastructure to store and host the information they liberate. In 2004, Fox Entertainment busted six employees who were hosting movies on the Fox servers for a warez group. Low-level music industry workers (including journalists) are the most frequent source of pre-release music leaks. The culture industries rarely disclose how their goods get onto the internet before they’ve hit stores—it’s embarrassing to admit that your own workforce is sabotaging you.
Few in the warez scene make any money from their piracy. Instead, they boast of their noncommercial motivations, which they counterpoise to the motivations of the software industry. Pirates are self-consciously political. They justify themselves by disavowing an industry that releases shoddy products at high prices—the industry that employs many of them—and they will also tell you they buy the products they like. But they don’t have to. Their decision to purchase is rooted in ethics, not in need.
This is the fundamental difference between capitalists and pirates. Capitalists accumulate. Pirates archive. A capitalist wants profit from the sale of every commodity and will enforce scarcity to get it. Pirates work to create vast common spaces, amassing huge troves of content, much of it too obscure to be of much use to very many people. Piracy destroys exchange value, and pays little heed to use value.
In the early 18th century, business and empire came up with a strategy to destroy piracy: extreme public violence. Pirate ships were hunted down and pirates were hanged by the dozens, or sent off to die “lingeringly” doing hard labor in one of the colonies. The decaying corpses of executed pirates were chained to trading posts from Ghana to Virginia as warnings to others. Brutal examples were set. And so it goes today.
Megaupload’s Kim Dotcom, a willfully tacky fat guy with a baby face and a vanity license plate that says “guilty,” has styled himself as a kind of comic villain, a composite of everything people love to hate. He effectively serves as empire’s face of piracy: an overweight nouveau-riche wannabe hacker who finally gets his comeuppance through the macho justice of Uncle Sam. It’s so easy to hate Kim Dotcom that you almost forget that the U.S. convinced the New Zealand government to send in an assault brigade, bereft of a valid warrant but outfitted with automatic weapons and helicopters, to arrest a Finnish citizen at the demand of Hollywood studios.
Megaupload, then the largest site for streaming pirated media, went off-line in January 2012. The second season of Game of Thrones aired from April to June of 2012, and more viewers watched it illegally on laptops than on HBO. New hosting services, and the link compilers who organize them, spring up constantly. Take down one Game of Thrones stream, or even the entire hosting site; take down a dozen or a hundred of them and the same episode will pop up in a slew of other spots, hydra-like, as the pirate multitude continues to wage its decentralized battle against property.
The hydra was the preferred metaphor authorities used against all manner of resistance to the violent and tumultuous enclosures of common property in the early centuries of capitalism. Peasants thrown off the land vandalized enclosures, vagabonds robbed the well-to-do, egalitarian religious figures preached the destruction of hierarchy, writers blasphemed state churches, slaves murdered their masters. The powerful spoke of the need to summon a Hercules to restore order, via state terror, to destroy these beasts.
Today, the subversion of intellectual property is one of the hydra’s heads, breathing poison and gnashing its teeth at power. It has a proven ability to sap the surpluses that capital requires for its reproduction. And this is occurring on a scale much larger than torrenting popular HBO costume dramas. National governments are in open revolt against U.S. IP dominance: India has granted compulsory licenses on patented drugs, effectively nullifying proprietary claims by pharmaceutical companies. China’s consumer goods sector is made up of increasingly realistic knockoffs of designer brands. European parliaments have rejected the onerous ACTA treaty, the most recent repressive telecom legislation the content industries have pushed on the increasingly skeptical electorate.
While digital piracy is a frontline in the struggle against capitalism, it is not in and of itself “radical.” It is structurally antagonistic to private property, but in contradictory ways. Kim Dotcom is the obvious example of the pirate capitalist; Google and the telecoms, which reap profits from the searching and bandwidth taken up by piracy, could be thought of as others. The warez scene and its offshoots in books, movies, and music are made up largely of white-collar professionals who rarely profess any opposition to capitalism (only occasionally to “corporatism” in that typically American fantasy of small independent business and markets without monopolies).
But things could change. Anonymous quickly went from online pranksters to the Red Brigades of the Occupy movement, striking fear into cops caught beating protesters. More recently, the group defaced Japanese government websites in response to draconian antipiracy legislation. There is nothing inevitable about the emergence of anticapitalist politics, in piracy or anywhere else. But anything that strikes terror into the hearts of the rich and powerful should be welcomed aboard with full honors.
Gavin Mueller is a contributing editor at Jacobin, a quarterly magazine of culture and polemic published quarterly in New York City, from which this article was excerpted (Issue 7/8).