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Source link: http://archive.mises.org/14267/the-real-ip-pirates/

The Real IP Pirates

October 16, 2010 by

PiracyIt’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.)

{ 18 comments }

Silas Barta October 16, 2010 at 7:57 pm

Oh, wow! Such a damning etymology for IP proponents to have to face! That’s almost as bad as property rights supporters having to defend landlords!

Matvei October 16, 2010 at 9:03 pm

Mr Kinsella,
You have a lot of interesting points, but the connections aren’t clear. Did the inventors of modern notions of IP “piracy” know that “patents were originally used to authorize actual piracy”? It appears that you are trying to demonstrate that IP proponents knew this and deliberately misuse the term (thus duping the ignorant masses), yet you didn’t provide evidence of this. Looking forward to your future posts on this subject.

Ohhh Henry October 16, 2010 at 10:54 pm

I think that in this case the use of the word “ironic” is correct …

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.

… meaning, that the inventors of the phrase “IP piracy” are unaware that IP’s ultimate origin was as a form of piracy. [cf. Oedipus Rex.]

Mrhuh October 16, 2010 at 10:35 pm

The more things change, the more they stay the same.

P.M.Lawrence October 17, 2010 at 2:57 am

It does not do to distort the facts in service of truth, for then you destroy what you seek:-

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 to entice pirates to become “privateers” (a fancy name for legitimized piracy)…

No, he was not an example of “Letters Patent … used by the British Crown”. There was no British Crown then, not even a personal union of the Crowns of England and Scotland. That’s over a century out. (I usually have to correct USAians who incorrectly write “England” for “Britain”; the other way round is rarer.)

Technically, the specific form of letters used were “letters of marque and reprisal”. Privateering was not simply “a fancy name for legitimized piracy”, though it could and sometimes did degenerate into that. Rather, it was privatising war activities targeted at enemy resources that themselves threatened one’s own commerce; it was about retaliation on the cheap. In Drake’s case, he was attacking Spanish maritime activity that had been seizing English sailors and imprisoning them as heretics if they didn’t both convert acceptably and serve Spain – there was a simmering religious cold war at the time. See, e.g., The Revenge, by Alfred, Lord Tennyson.

In other words, patents were originally used to authorize actual piracy.

Wrong. They were actually originally used for other things, such as setting up monopolies on behalf of somebody who paid for the privilege, e.g. a soap monopoly. This is actually a later, related use.

nate-m October 17, 2010 at 6:00 am

Privateers were frequently pirates and switched back and forth depending on which way the winds blew. The difference between the two groups is one of legality and not activity. The only major difference in activity is that privateers did not attack the government they were working for at the time. It seemed more of a situation were your weaponizing piracy then anything else. :)

As far as Letters of Marque vs Letters of Patent it seems like the term ‘Letters of Patent’ is generic and ‘Letters of Marque’ is specific.. that is ‘LoM’ is a ‘LoP’.

P.M.Lawrence October 17, 2010 at 8:14 am

The significant thing is that the author is quite wrong in tracing modern patents from privateering with its piratical connection, just as much as someone thinking men are descended from gorillas. Rather, there is a common precursor. Since he made such a big deal out of the fancied lineage, it’s a big enough deal to call him on it.

Stephan Kinsella October 17, 2010 at 9:43 am

P.M., I laid out exactly why I find this interesting–it’s simply ironic. I don’t see why your pettifogging over we should say “English” as opposed to “British” is relevant. (Silas: this is not about etymology; it’s about history.) And the origin is that the patent was a grant of authority from the sovereign to some private person to do something otherwise illegal, to capture some kind of monopoly profits or plunder, which were shared with the sovereign. This is what patents do now; it’s no surprise it came out of this original practice. How does it do it now? The state grants a patent to an applicant (supplicant?), for a fee. Then the patentee uses this patent as a ticket to get into the state’s courts, to extort (plunder, pirate) money from competitors. More fees are paid to the state courts during this process, of course, and then the state extracts 40% or so of this award in the form of taxes. Everyone is better off except (some of) the victimized companies–and the consumer, who simply sees higher prices.AS David Koepsell observes in a comment on my C4SIF cross-post:

I (obviously) love this little fact. But the irony is less stark when we consider that the fortunes of many modern IP-based companies were themselves borne of un-remunerated appropriation. Only after their fortunes and IP portfolios became entrenched have modern pharmaceutical, or even more recently, software giants become new believers in the power of IP. It’s my opinion that many staunchly “anti-pirate” activists are themselves modern privateers whose wealth has been built first on “theft” (which of course was often perfectly legitimate appropriation) which later becomes legitimated by the state which then protects their turf from others through artificial scarcity.

Re “British Crown,” I was quoting from Koepsell, to whom I linked. Actually I came across this in a longer quote from reviewing the manuscript of his forthcoming book, Wares; here is the original quote from the draft manuscript, along w/ a link to the Patricia Seed article that he references:

Intellectual Property: unique concerns of nanoIn the modern era, nothing has both hastened and complicated the landscape of innovation the way that the emergence of IP has. Developed at first by sovereigns (monarchs) as a tool to recruit entrepreneurial activity, or inventive persons, into their employ, ‘Letters Patent’ and later copyrights were exclusive monopolies protecting various goods and services and their authors or purveyors for a period of time. 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. Sir Francis Drake was employed this way to help undermine the growing Spanish dominion over the Caribbean and New World.[1] Letters Patent evolved slowly into modern patents. At first, they were employed sporadically and less than predictably by monarchs, and later they became part of entrenched and more predictable state institutions. Their modern forms are familiar: patent, copyright, and trademark. The original form of intellectual property protection was simple: it was called keeping a secret. Secret keeping is still used by some innovators where possible. It is cheap, and in some cases quite effective.[1] Patricia Seed, “Taking Possession and Reading Texts: Establishing the Authority of Overseas Empires, in Colonial America: Essays in Politics and Social Developments,” 5ed., ed. Stanley N. Katz, John M. Murrin, and Douglas Greeberg (New York: McGraw-Hill Companies, Inc., 2001) 22, 26.***There are a couple of other web resourced I looked at but did not bother including in my post above; one is the Pirates document here–excerpted below:
Today when we think of pirates, we often think of the literary and cinematic characters such as Captain Hook, Long John Silver and of course, Captain Jack Sparrow! In truth, piracy began much earlier than these portrayals.For as long as man has sailed vessels carrying goods, there have been pirates. In ancient days, the Greeks, Phoenicians, Carthaginians and Romans all sought to further maritime exploration. A complex network of trading posts and shipping routes grew out of those efforts and provided the incentive for adventurers to pursue the lucrative career of piracy. These early pirates sailed from African ports and were known as the Barbary corsairs. In the Early 16th Century, the most famous of them were the Barbarossa brothers. The Barbary corsairs continued plundering until the mid 1800’s.Pirates not only attacked other ships, but land settlements as well. The Vikings, or Norsemen, of the 9th -11th Centuries were notorious for sailing into Scottish, Irish and English waters to sack coastal settlements. They concentrated on monasteries and churches where they knew the richest treasures could be found. Some of these Vikings may have been the first to discover North America!Eventually, the Vikings continued to raid further and further inland and began to settle down, marry and raise families. Many town names in England and Scotland today reflect this ancestry as do many peoples’ surnames, e/g/, Johnson, Erickson, to name but a few. In the 11th Century, trade flourished between European cities. The most commonly used transport of goods took place on the seas. Cities began to band together and negotiate for safe passage of themselves and their goods while at sea. These merchant leagues, as they were known, became targets for English, Scottish and Irish coastal fishing communities as they sailed through the English Channel. It was far more lucrative to catch valuable cargo than fish!Spanish and Portuguese explorers discovered the New World while looking for a western passage to India and China. Once they stumbled upon the Americas, the face of piracy changed forever. Up until then, pirates had been who acted alone and didn’t care what nation’s land or ships they attacked. They were enemies to all maritime trade. But with the discovery of the New World and its riches, a new kind of piracy came into being.The New World, especially South and Central America was ripe with treasure. Gold, silver, and gem mines abounded. Native peoples of these lands wore their treasure as adornment. When the Spanish Conquistadors saw these riches, they set about capturing and conquering the “savages” and their treasures. The conquistador’s methods were successful and brutal. Aztec, Incan, and Mexican nations were subjugated, their wealth and civilizations stolen from them and replaced with Spanish greed, religion, and customs. They became little more than slaves on their own lands.The Spanish explorers’ adventures were funded by the Catholic monarchs Ferdinand, Isabella, and their descendants. The treasure needed to cross the ocean and reach Spain. Spanish ships were loaded with treasure and due to weather patterns, they sailed twice a year in groups known as flotillas. While the route to the Americas was kept secret, the fact they would be landing in Spanish ports twice a year couldn’t be kept a secret from the rest of Europe.In an effort to split the newly discovered lands up amicably, Spain and Portugal asked the Pope to make a ruling on who owned what. Pope Alexander VI split the ocean and lands up in such a way that Portugal’s territory included, all lands east, and as far west as parts of Brazil. Spain’s territories were the Americas. This notably left out England and France who were, to say the least, quite angry.Consequently, a new breed of pirate, the privateer came into being. According to Azcarrega, privateering was “the naval enterprise of a private individual and enemies of his State, who operates with the approval and subject to the authority of a belligerent power with the exclusive object of causing losses to enemy trade and so to that of other nations allied with the enemy.”There were two types of privateering. England’s Queen Elizabeth I gave letter patent to several ship’s captains to invoke the right of reprisal, that is attacking ships under the banner of an enemy country no matter where encountered. This allowed Queen Elizabeth to enlarge her treasury by the capture of Spanish treasure. Under the letters patent, the captains of these ships were allowed a share in the booty. England did not have to be at war with a nation for her ships to attack. France practiced privateering solely as an act of war, not of business.Perhaps the most well known of all England’s privateers was Sir Francis Drake. He was born in a coastal town in the southeast of England and had been around boats all his life. As a young sailor he sailed under John Hawkins who was probably the first English privateer. John Hawkins made his fortune by sailing to Africa, capturing and enslaving native Africans, then sailing to the Americas. Once in the Spanish-held territories he would sell the slaves as mine workers to the local governments. He would then lie in wait for Spanish ships to set sail and capture them. Through a series of mishaps, John Hawkins made only a few voyages, but remained in the business by owning many ships. Young Francis Drake was given command of one of Hawkin’s ships.Drake was an enterprising young sailor and captured many ships and much treasure for his Queen, He eventually owned several ships of his own and was instrumental in the defeat of the Spanish Armada’s attack in 1588. As a reward he was knighted and revered throughout the land.

See also this page, Information Serfing:

The historical journey includes a comparison of today’s CD and DVD pirates with the maritime piracy of Sir Francis Drake, which at the time was an endorsed state policy. England, a relatively poorer state than Spain, commissioned privateers like Drake to take Spanish profits for the benefit of England. It’s not such an imaginative leap to consider CD pirates as Robin Hoods, stealing from the rich American recording industry to give to the consumer poor.The development of copyright through the Stationers’ guild and the creation of ‘letters patent’ is traced from medieval times through to the 20th century—charting the competition between German and American chemical industries, the impact of the two world wars, and the later move from chemistry to biochemistry and genetics as the intellectual property perimeter. Today even DNA sequences can be patented.

nate-m October 17, 2010 at 9:49 am

nice. :-)

P.M.Lawrence October 17, 2010 at 3:20 am

In fact, now I’ve had a quick look around, I find no strong evidence that privateers using letters of marque and reprisal came under the head of Letters Patent at all, though the possibility that it may even so have been a general category is there.

nate-m October 17, 2010 at 6:05 am

Yes.

It looks is if ‘Letters Patent’ is more general and ‘Letters of Marque’ and ‘Letters of Reprisal’ were specific types of ‘Letters Patent’.

This seems like a fun website:
http://www.piratesinfo.com/cpi_letters_of_marque_pirates_piracy_pirate_954.asp

The letters themselves were open documents, or ‘Letters Patent’, written in the secretarial hand of the day and marked with the Royal seal. They were intended to be held by the ‘venterer’ or ‘privateer’ as evidence of his royal licence. Early English examples were written in Latin, or occasionally French and, from the 16th century, in English. They are often long-winded, repetitive and full of legalistic language, containing repeated listing of the people to whom the licence is issued and to whom it is addressed or to whom it should apply, with many an ‘aforesaid’ or ‘hitherto fore’.

This stuff is trivial, of course. But it’s always interesting to see were legal institutions get their originations.

P.M.Lawrence October 17, 2010 at 8:16 am

“This stuff is trivial, of course” – no; see my reply above. The author made it a big deal, so it is.

nate-m October 17, 2010 at 9:34 am

I think that it’s trivial. I can’t see how it’s not trivial. That’s why they call this sort of stuff ‘trivia’. It’s interesting also to know were the term and idea of ‘patents’ come from.

Etymology does matter; words mean stuff. In terms of relative scale with other issues I don’t give it a terribly high importance, though.

Why does everything have to be such a huge deal?
It’s just a funny thing because the whole word ‘pirates’ being slung around by everybody.

Stephan Kinsella October 17, 2010 at 10:28 am

You’re right, nate-m. It’s like some people are afraid of information. They want you to be banned from saying things if it does not meet some test. The information is not that profound but it’s interesting, or so I think. People who don’t think it’s interesting can ignore it.

prettyskin October 17, 2010 at 10:53 am

The author was called-out on the core point of his piece. In pointing out his recklessness in quoting others, the piece is weaken and does not show any added knowledge beyond what we have read on IP pros and cons. Nonetheless, it was interesting and pointing: the continued bastion of the author’s history error due to quoting.

David Koepsell October 17, 2010 at 2:53 pm

Thanks for correcting… I will change ‘british’ to English in proofs. The point is merely one of irony, and that remains true, as patents are the blanket term, encompassing specific forms of grants that often turned pirates into ‘privateers,’ using monopolies as enticements by states to commit violence on behalf of the state.

Challengerek October 17, 2010 at 3:06 pm

Very interesting article. Some time ago I read an interesting article which is not connected to the IP but Pirates themselves and how invisible hands of the market worked among them. http://www.scientificamerican.com/article.cfm?id=pirate-economics

Joshua October 18, 2010 at 4:34 pm

This article about privateering is very educational (it is also found in Myth of National Defense)

Privateering and National Defense: Naval Warfare for Private Profit
Larry J. Sechrest

http://mises.org/journals/scholar/Sechrest6.PDF

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