1. What is The Piracy Paradigm about?

At its most basic level, The Piracy Paradigm is a project about the assumptions and belief systems that have developed historically around copyright law and policy. The Piracy Paradigm examines these beliefs within the context of America’s history of innovation, its culture of industrialization, the rise of multinational corporate entities, and the ethos of capitalism. The project examines how and why copyright’s belief systems have developed, and the difficulty of changing them despite information, data and evidence that call them into question.

2. What is a paradigm and why does it provide a relevant and effective way of talking about U.S. copyright law?

A paradigm is a standard or archetype that organizes a person’s experiences, information and reality. Paradigms tend to get confused with frames, especially because the issue of framing – particularly political framing – has become a recent and popular topic. An example will help make the distinction.

Most everyone recognizes a frame as a border: you focus on what is within the border, and ignore what is outside the border. That is generally how frames work, regardless of whether the frame surrounds a photograph or work of art, or the frame is used to narrow or isolate questions or responses in law or politics. So the frame is the border that facilitates your focus on what is within the border.

In contrast, a paradigm consists of the views, education and training that have lead you to choose to focus on what is within the border, rather than focusing on what is outside the border, or even the border itself. In short, a paradigm usually begets a frame, not the other way around. A paradigm also is broader and more significant than a theory. When folks agree on a paradigm, they usually agree on what theories are valid, what theories are not valid, and even how to argue a theory’s validity or invalidity. As a paradigm begets a frame, a paradigm also begets a theory – the theory essentially supports the paradigm’s intellectual roots.

Paradigms are an excellent way to discuss U.S. copyright law and policy because the doctrine long has subscribed to a standard. Copyright’s standard always has been about protecting the production and distribution of copies beyond those which an author or copyright owner authorizes within a specific timetable or window. That standard has been supported by various theories – incentive and Romantic authorship are the most common – that purport to justify copyright’s existence. The theories, along with America’s economic and technological maturity, have combined to make copyright what it is today. Many believe copyright, as it exists now, suffers a litany of problems. I agree with many such arguments and analyses. Still, I believe it is virtually impossible to address fixing the copyright system without fully understanding how it came to be: what historical experiences have led us to our current understanding of copyright, and why that understanding seems to conflict so violently with what we’re trying to do today.

The Piracy Paradigm provides a context for why and how copyright has come to its current point of conflict, and why understanding this history is essential to resolving its problems.

3. Where did you get the idea for the project?

I got the idea for the project while exploring the meaning of “piracy” within copyright discourse, first through Copycense, which I have written and edited since 2004, and later for Information Today, for which I have written an intellectual property column since 2008.

In 2009, I wrote a white paper on the etymology of the term “piracy.” In researching that paper, I discovered “piracy” first – and always – has meant forceful and illegal takings at sea. Further, the research showed me that synonymizing “piracy” with “copyright infringement” always has been a rhetorical trope meant to impute morality into what usually were strictly business issues, not personal affronts. (The white paper once was available on SSRN, but I removed it. I will make that available on this Web site presently.)

I did not begin to understand piracy as a paradigmatic belief system, however, until I applied this older research into what ultimately would become a more extensive study about piracy and its place within U.S. copyright’s history. Parts of the first book about The Piracy Paradigm stem from that doctoral study.

4. This concept seems very theoretical. Do I need an advanced degree to understand it?

One on level, The Piracy Paradigm is theoretical. The notion of scientific paradigms was developed by Thomas S. Kuhn (1922-1996), a philosopher, physicist and the author of The Structure of Scientific Revolutions, or SSR. SSR is one of the most important works ever published about science and its development, regardless of whether you are talking about physical sciences (chemistry, physics or earth sciences), life sciences (biology, physiology or ecology), or social sciences (psychology, economics or law). The Piracy Paradigm essentially applies Kuhn’s notion of paradigms, normal science and incommensurability to law generally, and copyright in particular.

On the other hand, The Piracy Paradigm should not scare you off because it is likely you are familiar already with one of its basic principles. Many people have heard of the term “paradigm shift.” That is a term, which Kuhn introduced in SSR, which explains the process of how widely-held scientific beliefs ultimately change. A “paradigm shift” typically occurs over a lengthy period of time, usually after repeated challenges to the existing paradigm, and within the context of a whole host of economic, sociological and sometimes irrational factors.

Right now, copyright is experiencing its own paradigm shift. But in order to understand copyright’s paradigm shift properly, one must explore copyright’s history, its ethos, its culture, and all the factors that coalesced to establish the prevailing paradigm that so many chafe against in the 21st century. The Piracy Paradigm presents this context in a historical, theoretical, but hopefully entertaining narrative that anyone can understand.

5. Why would The Piracy Paradigm interest anyone who is not an academic or law professor?

A lot of different people will be interested in The Piracy Paradigm because it is a story about culture-driven conflict. We have seen this before: there is culture-driven conflict about monetary policy; there is culture-driven conflict about reproductive rights; there is culture-driven conflict about religion. Copyright now is another form of culture-driven conflict.

To be sure, it was not always this way, because copyright did not always affect the average person. For most of its 300 years, copyright has applied only to professional creators and corporate entities whose primary business was selling cultural commodities. This began changing in the eighties, with the advent of personal computing, and became even more pronounced in the nineties, when the Internet became available to the public. Not only did creativity become democratized, but the price to produce and distribute creative works plummeted. Increasingly, this has meant that anyone with a $1000 computer and an Internet connection can create in ways that only professionals and firms could create just 20 years earlier. This change also brought into focus how collaborative the creative process always has been, which is at odds with some of copyright’s dominant theories – and by extension, its paradigm.

So while The Piracy Paradigm certainly contains enough scholarship to satisfy an academic or law professor’s research jones, its central narrative – culture-driven conflict – is a story that anyone can relate to.

6. How would you classify The Piracy Paradigm? Is it all about copyright?

The Piracy Paradigm is about the culture of copyright, as seen through the lens of the law, but also through the lens of the businesses copyright has affected. The project plumbs copyright’s history, its main theories, its principles, and its rationale. In effect, I give the reader a guide to how The Piracy Paradigm has been built.

Then, I look at copyright through its history and how it has evolved in light of changes in technology, innovation, and culture. Most importantly, I examine copyright and its role in commoditizing culture, particularly through the recording industry. In order to understand how we have arrived at the our current copyright conflict, we all need to understand the road we have traveled.

So, yes, The Piracy Paradigm is about copyright at a core level, but it is as much about the intersection of culture and commerce as it is about copyright.

7. What do you hope readers will take away from the project?

First of all, I hope people get a much better understanding about copyright and its history than they have now. For better or worse, copyright is now a constant, everyday factor is most people’s lives. As Jessica Litman has written, you no longer can spend an hour of any day without colliding with copyright. Therefore, I think it behooves all citizens to have a baseline understanding of what copyright is, how it developed, and what factors influenced the development of the rules we have in place. Misinformed discourse about copyright is bad discourse about copyright, and there is a lot of bad discourse about copyright going around these days.

Second, I would like those who are interested in or affected by copyright to have a better way of making sense of the copyright system, independent of a pithy, 140-character opinion or an op-ed article that continues to roll out the same justifications for increasing copyright protection that were offered 40 years ago. The copyright system requires calibration and rebalancing, but that cannot occur until the public – now a chief copyright system stakeholder – understands copyright’s contextual history. The Piracy Paradigm provides that contextual history.

Written: March 15, 2012
Last Updated: February 17, 2017