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Hostis humani generis. History of a multi-faceted word

by Salvatore Poier
20 Dec 2009 • Comment (0) • Print PDF
Posted: Pirates and Piracy [5] | Article
 

Introduction[1]

The semantic richness of the word “pirate” – which has been applied indifferently to sea criminals, copyright infringers, and hit-and-run drivers – is based on an assumption to which it seems every person could agree: crimes committed by pirates are hateful because they are against the current order of society. For this reason the famous definition of pirates, in Latin, seems to fit perfectly: pirates are simply hostis humani generis (enemies of humankind), who are outside society, and whom we can all fight without any further justification because they act against “us.” But pirates have also been seen – and still they are, thanks to recent Blockbusters – as bloodthirsty but also romantic heroes. The myth of piracy still exerts its influence on people and researchers, leaving pirates in the ambiguous position to which they are so accustomed: if, on the one hand, pirates are those who damage cargoes or coastal zones, on the other hand they represent redemption for those among the poorest who cannot have other opportunities but to become pirates.

Piracy has often been considered an epiphenomenon of sea commerce. However, in at least three cases in the history of Modern Western piracy, it has assumed more stable forms of social organization. At these important moments, pirates came to represent also valid and possible alternatives to the traditional forms of government and economic exchange. Further, it is precisely when piracy assumed that stable form of organization that pirates acquired the status of global enemies. We are going to analyse here those moments, in which people who were technically competent but organized independently from the mainstream were identified as pirates and came to represent a threat to the status quo of both politics and economy. This definition is not necessarily based on the actual consciousness and self-identification of these people as “pirates,” but rather on an ascribed label and a protracted process of criminalization that political and economic society enacted against them.

In this article I will demonstrate how the status of “pirate” is not related to a specific set of activities that are, in and of themselves, “criminal.” Rather, this category took shape through the relationship between those who were labelled “pirates,” the constituted power, the mob, and the future of a newly discovered territory. Then I will underline how, even if the word ‘piracy’ had been applied to many different activities in totally different contexts, the social and political core of its meaning has been unchanged since the very beginning.

Sea Pirates and their Golden Age

Pirates have long had a counter-hegemonic role. But even if the status of pirates expressed a counter-hegemonic attitude also in the Classical Age,[2] sentiments toward pirates were diverse depending on the age and the place in which they were acting and the population which they were affecting.[3] While before the “discovery” and conquest of America pirates were marginal – although very interesting – communities based on plundering, trading, and patrolling their territory of influence, with the development of more resistant ships, the improvement of navigation techniques, and the richness and vastness of the newly “discovered” territories, the European centre of trades and military efforts shifted toward the Atlantic. Piracy in the Mediterranean sea – often locally established for decades – was destined to a secondary role, from then on, while a new form of piracy – more global in routes and composition of the crew – was going to affirm itself in the Atlantic and the Caribbean.[4]

A crucial element for the settlement of pirates in the Atlantic and the globalization of piracy emerged from the wars among European kingdoms, fought mainly in order to define the areas of influence overseas. The Spanish wielded their supremacy thanks to their long experience in ocean navigation, deep knowledge of the conquered zones, and strong military presence on the seas and colonies.[5] The British and French – but also Dutch – attempts to undermine the power of the Spanish empire in Central America was only slightly successful, since their military power was extremely weak, compared with the overwhelming naval power and experience of the Spanish. Mainly for this reason those states formed an alliance to sap the Spanish supremacy, and to strengthen their fleets they issued a number of ‘letters of marque’, which enabled a large number of boats manned by privateers to lawfully attack and plunder Spanish merchantmen.[6]

It has been a widely accepted hypothesis that the sudden discard of privateering generated a large amount of unemployed adult males who had been accustomed to cruelties, robberies, and suspension of legality. These people would greatly increase the number of pirates.[7] While these marginal people were useful to the institutionalised power when enlisted against the monopoly of Spain, they suddenly became unwelcome when the French, Dutch, and British wanted to set up their areas of influence, colonies, and overseas markets directly. While, before then, these barely legal privateers were considered intrepid merchants, with the coming to peace,[8] their presence was not just unwelcome to the kingdoms, but also embarrassing for their international relationships. Most of these unemployed young people, accustomed to violence and often desperate, became pirates both because the alternative was often a poorly paid and highly risky job, and because the life on a pirate ship was often better than other jobs at sea.[9]

If spirit of adventure, democratic consultation of the crew, equally divided pay, and good food were reasons enough for most of the former privateers to become pirates, they were also useful for the constituted power, which needed an external menace, a kind of scapegoat, to close the ranks of the colonies and colonists and make them more loyal to their homelands. Colonies were, in fact, tempted to proclaim their autonomy from their homelands, both to increase their economic power and to facilitate trading with more buyers. Against this risk, the protection against an external, unpredictable, and bloodthirsty menace was a good strategy to keep the colonies tied to the metropole, and governors loyal to the crowns. On the other hand, pirates served local government interests, since governors could trade their goods using pirates’ violence as an ostensible reason for their untrustworthiness. Since borders, territories, and laws in the “new world” were undefined and under constant negotiation, pirates were the indispensable public enemies, the external menace to the unquestioned colonization and market, a threat which everyone had to fight but which had to be kept alive in order to justify another embedded violence – colonization.

But if this danger and menace was clearly defined by the European states and courts, in sites where pirates and colonists were in daily contact, the situation was not so clear. As already mentioned, pirates were often commercial partners of the colonies: smuggling goods for cheaper, they were broadly welcome all along the Central America coast, with some preferred ports (the island of Tortuga, for instance). Smuggling and trading goods for cheap was one of the most appreciated benefits of proximity to pirates, and it has been one of the strongest reasons why piracy was so difficult to eradicate.[10] While from abroad the activity of pirates was perceived just as criminal and harmful for commerce, for those who were facing piracy on an every day basis – governors, merchants, and people in the colonies – collaboration with pirates was, most of the time, a fruitful deal. In a game of hearing the motherland and accomplishing the will of the court on the one hand, and trafficking and trading with pirates on the other hand, colonial governors were often exploiting the slowness of communication and uncertainty of the legal framework overseas in order to make their settlements flourishing commercial ports.

We can now comprehend better that pirates during the so called Golden Age of piracy (1650-1720) were not simply criminals who were attacking and plundering ships and rich ports. Rather they were highly skilled seamen and entrepreneurs who were immersed in a network of people, deals, traffics, and political struggles in which colonists were fighting sometimes for and sometimes against the metropole in order to make their settlements into rich towns in the new world. If pirates were actors in a more broad fight between states, they were playing an important role also in the conflicts between the states and their own colonies. Furthermore, they were even more threatening for the established power since they were also experimenting a democratic way to manage their communities. The Brethren of the Coast, for instance, was speaking a language which was a medley of different European languages[11] and if asked from where they came from, they answered “from the sea”. They were autonomous and independent, belonging to no state and with no common language, refusing sometimes the slave trade and permitting freed slaves to join the crew,[12] people who had refused any legality in order to devote themselves completely to their freedom.[13]

The way in which pirates managed life on the ship was particularly interesting, considering the level of participatory democracy of that time. Pirates were recruited mostly voluntarily, signing a list of duties and rules to which they had to be loyal and law-abiding. The booty was divided on the basis of predetermined shares, and the captain was elected democratically. Captains had power during the attacks and when the ship was in trouble, but as counter-posed power a quartermaster was elected, whose role was to govern the ship in peace-time and to question the captain’s behaviour, if it was damaging to the crew. The quartermaster could then issue a court against the captain, which could decide to dismiss the captain for abuse of power or actions against the interests of the ship.

As we can imagine, the democratic management of the ship, the balance of powers aboard, the equally distributed booty, and the promise of an easy and satisfying life on the sweet beaches overseas had been for both young, unemployed, poor people and seamen working in the commercial or military navy an irresistible call. Pirates began to represent the poor redeemed, demonstrating that an egalitarian society based on few and unanimously approved rules was possible. In the alternative society signified by pirates, everybody – no matters which race or skin colour – could join and have a successful career based on his own merits and skills.[14] Piracy was the occasion to grasp something good from life, the opportunity to finally gain a respected status thanks to hard work, not because of rights of birth.

Piracy represented an alternative way to manage living together, and for this reason it threw deeply into question the old, stale, and corrupt European oligarchies. This new form of piracy – grounded on democratic principle and shared values – was for the instituted power the flick of the tail of the beast of the English Revolution, which had been defused at once by its own promoters, but was then presenting again its ideals and principles in a more flexible – both economically and legally speaking – social context.[15] Thus pirates and piracy during the Golden Age were not just the umpteenth example of economic re-appropriation and re-distribution of goods and resources (or criminal behaviour, depending on the point of view), but also a moment of experimentation in new legal and social forms of organization. Those who had been exiled or reduced to silence after the Restoration were then speaking again miles away from their hometown, contributing to building a new society based on democratic principles and egalitarian ideas. This was probably a criminal society – on the edge between legality and illegality, much like the governors and people who were helping them – but it also represented an effective alternative to monarchy. And this aspect – the actual and operative possibility of an alternative society – was what was so frightening to the constituted power in Europe. Pirates were not simply a problem of control over a territory which was, by definition, uncontrollable; or an element of disturbance in the setting up of new markets and colonies: they were the example of an alternative way to responsibly manage living together.

This social and political consciousness was acquired by pirates at the very moment in which they could realize that their navigation skills, courage, and entrepreneurship were seen as actions performed by a mate in a collaborative environment rather than as a duty to a king. Meritocracy, expertness, responsibility, and sense of belonging to a community of peers were transforming pirates from a problem in the sea market to a threat for the status quo of political power.

These characteristics blended together to make the “Golden Age” far different from other moments of piracy. In order to support this hypothesis we will analyse two main aspects. The first will show how the myth of piracy was seen by people of those times with fear but also admiration, a sense of danger but also hope for redemption. The second will demonstrate the semantic shift of the word ‘pirate’ to completely different contexts, which underlines that pirates were more than simple ‘criminals on a ship’, and that their social resonance was much deeper than a momentary wave of criminality.

Sea Pirates in Popular Culture: fear and redemption

A mysterious Captain Charles Johnson[16] wrote an account of pirates’ ventures, extremely popular since its first edition in 1724, giving an important “insider” account of pirates’ lives, social organization, rules, and customs. Despite his assertions that he disapproves of the piratical life, Johnson[17] describes pirates as adventurers who decided to live their life free and according to their principles, accepting the risk of being caught and hanged but acquiring a kind of freedom which was not even contemplated by other forms of government. While the Author formally condemns pirates’ behaviour, it is evident from the tone of the narration, the depth of the details, the description of pirates’ reasoning not just that the Author was most likely a pirate himself, but also that pirates’ choices were often taken with consciousness, pride, and a highly specific ethic. This ethic was grounded on absolute respect for the bravery of peers but also of enemies; the voluntary submission to the rules – accepted and signed by every member of the crew – and to the procedures that those implied; and finally the conscious acceptance of the risk of being hanged if caught by the Navy and put on trial. The risk of being punished was pretty high, but it was just one among a range of risks that life as a pirate entailed, such as dying on the sea or in battle, or simply having no “preys” to plunder for a long, long time. But on the other hand, the alternatives that many of these people had were very few. To underline how easy the life of pirates was compared to that of other seamen, Johnson[18] reports the last words of Captain Bartholomew Roberts – known afterwards as Black Bart – who in his trial affirmed:

In a honest Service there is thin Commons, low Wages, and hard Labour; in this, Plenty and Satiety, Pleasure and Ease, Liberty and Power; and who would not ballance Creditor on this Side, when all the Hazard that is run for it, at worst, is only a sower Look or two at choaking. No, a merry Life and a short one shall be my Motto.

The popular image of pirates as dangerous but also free people started to circulate, increasing the number of people who desperately wanted to join them. A life in which hard work was rewarded, in which the risk of being punished followed a life of happiness and success was more than most of the poor could ever experience. Pirates were not seen just as the dangerous criminals who were attacking ships and almost paralysing the market in the late Seventeenth century; they became a symbol of the possibility of redemption which was offered to everybody, even to the poorest and most miserable. They were an example of an alternative way of living – uncertain and risky, but also free and potentially satiated by treasures and food. Piracy represented for many of the poor the opportunity to get out of an unavoidable life of deprivations and misery, taking control over their lives bravely and with pride.

This sentiment of rebellion against an unjust society, and redemption from a socially inescapable situation, is a common feeling also in other piratical situations. The recent phenomenon of piracy out of the Somali coast seems to share those roots. On the one hand there is the weakness of a state, enfeebled by years of internal fights, which cannot ensure the protection of its own coasts. On the other hand, there is social approbation of a behaviour which is simultaneously seen as a pay-back for pain and deprivations suffered in the past. And this is not just socially accepted, but is rather a fairly “cool” thing to do, as a New York Times journalist points out:

He said that so far, in the eyes of the world, the pirates had been misunderstood. “We don’t consider ourselves sea bandits,” he said. “We consider sea bandits those who illegally fish in our seas and dump waste in our seas and carry weapons in our seas. We are simply patrolling our seas. Think of us like a coast guard”. [...] In Somalia, it seems, crime does pay. Actually, it is one of the few industries that does. “All you need is three guys and a little boat, and the next day you’re millionaires,” said Abdullahi Omar Qawden, a former captain in Somalia’s long-defunct navy. People in Garoowe, a town south of Boosaaso, describe a certain high-rolling pirate swagger. Flush with cash, the pirates drive the biggest cars, run many of the town’s businesses — like hotels — and throw the best parties, residents say. Fatuma Abdul Kadir said she went to a pirate wedding in July that lasted two days, with nonstop dancing and goat meat, and a band flown in from neighboring Djibouti. “It was wonderful,” said Ms. Fatuma, 21. “I’m now dating a pirate.”[19]

Pirates then presents – in the past as nowadays – an opportunity, for those who are at the bottom of the society to climb up toward a decent and respected life.

Semantic shift of the word ‘piracy’

We have seen how the counter-hegemonic image of sea pirates and piracy has been interpreted and elaborated in popular consciousness. We are now moving toward the shift in meaning which the word sustained in the past three centuries. The fact that, when we are talking about piracy, we are often asked which type of piracy we mean should make us think that something important has pushed people not to adopt a new or more precise term to define those criminals and crimes (counterfeiters and counterfeited goods), but to adapt an old term for a new situation. For which reason do we call those people who illegitimately copy a book, a CD, a DVD, or a file ‘pirates’? And why are counterfeited products named ‘pirated goods’?

After the statute of Anne (1709), the protection of copyright was granted by the state to the author of books and to the first printer who bought the right of print from the author. Those printers who were illegitimately printing and selling the book became liable to prosecution. Those printers were called ‘pirates’, and their products called ‘pirated books’.

There is no room here to even summarize the history of copyright and how it changed the way in which authors produced the fruits of their intellectual labour,[20] but the semantic extension to a completely new field of human experience cannot be ignored by those who want to have a comprehensive understanding of piracy and its relationship with society. This (mis)use of the word, in fact, suggests that there are important similarities between copyright infringers and pirates. These similarities were especially evident to those who had experience of both pirates of the sea and counterfeiters.

In Donaldson v. Beckett, a case on copyright on which the English House of Lords ruled in 1774, the books illegitimately copied were called “pirated”, and the illegal printer a “pirate”.[21] There is no clear explanation as to why both the product counterfeited and the counterfeiter himself were categorized in such a way, indicating that these terms were probably used by the people to define the books illegally printed in Scotland and sold in London for a few pennies less than the “original”.

But what makes the two types of “pirates” similar? Both of these ‘pirates’ pillage and take possession of the work and sufferings of others in order to have a personal advantage. However, we can also say that both categories of pirates were fighting for a cause considered by some to be “noble.” Sea pirates were fighting for their booty, of course, but also to make their existence worth living, gaining the respect of peers; illegal printers were fighting for personal gain, of course, but also against the unreasonable (in their perspective) privilege of copyright and in order to make the knowledge accessible to everybody.

However, the most probable reason why those illegal printers were called pirates can be retrieved in a media move by the legitimised printers in order to depict the competing printers as a public enemy, plundering the honest work of those who had legitimately acquired the rights to print and reprint a book. Further, pirate printers were often framed as external threats (most were Scottish) pillaging the culture and the literature of the people. With the many threatening images associated with “piracy” in Eighteenth-century England, the use of the word out of context was a precise rhetorical stratagem to conjure this dangerous image in the public consciousness. The memory of pirates – who were almost completely eradicated after 1726 – and their allegedly horrible actions were still vivid. Pirates were a rhetorically effective image to be evoked in order to focus the public attention on a problem which was a great economic advantage for most of the people (cheaper books for everybody) but an economic disadvantage for a small part of the population (London’s printers). In addition to the difficulty in regulating print piracy, judges were also not recognizing and effectively protecting the copyrights (Donaldson v. Beckett was controversially debated up to the House of Lords and finally decreed the non-existence of perpetual copyright). As such, the crusade against print piracy emerged largely as a battle for public opinion. If the public could be convinced to perceive pirated copies of books as illegal, and their purchase disgraceful, the actual decisions of judges regarding copyright were almost irrelevant for the market of legitimate printers. The creation of a public enemy was then a good strategy to make a law that protected a privilege on an immaterial goods comprehensible to everybody as reasonable and just compensation for immaterial work. When this operation had been successful conducted, the analogy between pirates and illegal printers was established. As pirates, the illegitimate printers were plundering not just an ethereal right conceded by the queen to a specific and limited category of workers – as copyright could have been perceived – but rather a real and touchable good. Pirates – both of them – were depicted as those who were undeserving, having acquired a prize without the effort, the meal without the hard work. This was the most important aspect that the legitimate printers wanted to make evident: inducing in customers a sense of antipathy, even loathing, for the illegitimate printers.

On the side of this self-promotional activity, there is a set of other characteristics that we can find in the semantic association between sea-pirates and counterfeiters. To buy a book was, in the eighteenth century, not anymore an unreasonable expense. Books were printed and sold for little money, compared to the previous century. Printing was becoming a good profession to practice, and thus the competition was pretty high. People were reading more and more, and the market for newspapers, pamphlets, and books was growing. Most of the products, anyhow, were destined for a short life. Authors could print just some copies of their books, and most of the time authors could not even pay for those few copies. Printers began to understand that, in order to print successful books, they had to become publishers, and so commission writings directly from the authors after paying for their best works. This investment needed to be protected. Moreover, authors were asking for protection of their work too: if a book was particularly successful, for example, they should be able to gain more money; likewise, if they did not want to reprint a book which had been already published, they wanted the power to prohibit that. Copyright was born of the demand for protection of both new forms of entrepreneurship. On the one hand, we have printers who invested in a project; on the other hand, authors, who were now independent writers – no longer fed by patrons and kings – who needed a way to ensure income. Thus, illegitimate printers were not just a problem for the legitimate ones, but also for authors.

However, as we mentioned above, copyright was, in the Eighteenth century, a newly issued law which protected an immaterial good never considered before. Copyright was opening a new chapter in legal history. The statute of Anne was founding a new legal territory, as well as setting up and sketching out the first cartography of it. Illegitimate printers, as pirates before them, could be considered pioneers in newly discovered and settled territories. Those territories were potentially extremely rich and vast – even if it was not clear to anyone exactly how rich and vast they were. Authors, but especially printers, wanted to monitor this new activity and set up clear laws which could punish those who were not following the terms of the pact among printers. The definition of the illegitimate printers as pirates then is not just a rhetorical stratagem, but shows us that pirates and counterfeiters have in common more than the plundering of rich merchants: they reveal an attitude of criminalization activated by markets and governments.

When pirates were trading with the colonies, and their governors were protecting them, their political status was still not clearly defined – even if legally they had been already labelled outlaws. They were seen by societies of the colonies as good customers and great dealers, and so politically important characters in the local scenario. Even if in Europe pirates were already condemned as outlaws, in the colonies they still were often respectable merchants who could even become esteemed citizens. Likewise, illegal printers were competing in a very cutthroat environment, and their ability to make political and economical connections was crucial to their survival in a newly administered world. As such, even while they were framed as legally illegitimate, their activities and products were often appreciated by people, and so they often became politically important.

But printers shared another important characteristic with pirates: both had expertise in their fields. Sea pirates’ strong technical skills and deep knowledge of the ocean-routes, coasts, and ports, accompanied by an inestimably vast experience, was one of the primary reasons why they were considered criminals to be feared. Because of their skills and military preparation, pirates could have brought to their knees the armies of England, of France, and even of Spain, if they would been able to aggregate into an organized power. Similarly, illegitimate printers had strong technical competence, money, and resources, and so they often could afford to ignore the newly–devised rules, forcing de facto the state to rule in their favour. As pirates, in fact, the printers had the privilege of being out of range of the state’s censure, and in fact, could have simply ignored the laws and kept printing their pirated books freely. But they did not. They preferred to establish an agreement with the state and the other printers, gaining then also approval in terms of recognized social norms. Thus the use of the word “pirate” and “piracy” to criminalize illegitimate printers brought to the legitimate printers not just a success in achieving their interests, but also catalyzed the creation of a new juridical object: intellectual property.

The application of the term ‘pirate’ and ‘piracy’ to counterfeited goods has been, since then, useful in the affirmation of copyright legislations and extensions. For instance, the first radio broadcasters were defined ‘pirates’ by the publishers of music sheets; audio tapes were depicted as threats to musical creativity; video tapes and VCR were seen as the end of both the cinema industry and television. None of these scenarios happened, and instead, the objects of “creativity” have multiplied in the past forty years: more music, movies, and TV shows are made, published, bought, enjoyed, and often forgotten. Internet by itself – the copy-machine par excellence – while often facilitating copyright infringements, is also providing tools for new media and making these available to an increasing number of people/authors.[22]

Thus, if pirates challenged the status quo of the forms of government on the one hand, they also helped to legitimate that very status quo retreating from the political battle on the opportuneness and fairness of a choice (colonize a continent; create and protect a privilege), rather discussing the ways in which these choices were going to be applied.

Internet piracy and the case of “The Pirate Bay”

The battle for the affirmation of the necessity of copyright legislation has been a long one, and it is not over yet. In the past century the extensions and expansions of its limits were numerous. Even if sea pirates are still present and active in our society,[23] in the past forty years the label “piracy” has been increasingly applied to copyright infringers. With the revolution of the Internet this type of piracy has been both easy to commit and increasingly appreciated by users. Not just downloading, but also uploading music, videos, and movies on-line has shown to people how culturally enriching and socially engaging is an almost forgotten activity such as sharing. De facto on-line piracy is shifting the discourse from a legal one (protection of copyright) to a cultural one (cultural and social enrichment).

The case of the website “The Pirate Bay” (TPB hereafter) is representative of this shift. Peer-to-peer, the technology which makes possible the sharing of large files over the Internet, is grounded on the willingness of participants in the community to share files they are downloading from other users, or which they have already downloaded in the past. TPB is an on-line database through which is possible to know if a file is already shared and thus join the group which is sharing it, or if it is not shared yet, to put it on-line for sharing. TPB is maintained in Sweden, where copyright violations over the Internet were not clearly indictable (until April 2008) as in other countries (especially USA). As a result, even if the owners of the website have been sued multiple times, the website was never forced to definitively close. Enforcing copyright legislation against a website which is situated in a physical space but spread its action globally, it has been a puzzle for lawyers since the beginning of the Internet. An effective legislation would surpass, in fact, the jurisdiction of single states, and needs a strong coordination between governments. The website has been locally obscured multiple times, but the nature of its directory list always freed it from attachments.[24] For years, the website represented an active and increasingly popular way to make available new releases, but also old movies and songs, which are otherwise inaccessible. Furthermore, the website has been a catalyser for questioning copyright issues in lots of states. While governments are organizing and orchestrating a common response to them, these modern pirates actually mock lawyers and big corporations which have been threatening legal actions and enormous fines. Letters sent by lawyers around the world to order the website to shut down a particular page – because it was damaging the copyright of their clients – have been published in TPB, alongside the replies mocking them.[25] TPB has in fact been sued – without success – multiple times, but in 2008 a trial took place, bringing TPB’s owners to court and finally condemning them to a fine of thirty million Swedish kronor (around 2.7 million Euros – 3.5 million US dollars).[26] Both before the sentence was read and after the actual condemnation, numerous people demonstrated in front of the tribunal and sent letters to the Swedish minister of justice.[27]

TPB never withdrew from its role as a provocative mobilizer for anti-copyright and pro-anonymity movements. The fine of 2.7 million euros stopped neither the people at TPB nor their supporters. On the contrary, the trial was a boost for the Swedish political party which sympathizes with the website and is focused on Internet freedom of speech. The group of people assembled around TPB has been invited multiple times to Art exhibitions and, lately, to the Venetian Biennale[28] in order to set up installations about freedom of speech and expression, using, mixing, and producing new content. Using the enormous number of people who connects daily to it, TPB has in fact started to gather supporters all around the world, underlining that their fight is not for something purely illegal or illegitimate, but rather, is related to the freedom of speech.[29] The website has continued to grow in both number of visitors and uploaders. Furthermore, a movement of people concerned about freedom of speech and sharing over the Internet started to gather around the three primary maintainers of the website in order to devise social and political actions to undertake. The result of this activity and cultural ferment has been a political party which, in the European elections held in June 2009, brought one candidate of the party to the European Parliament, collecting more than 7% of the votes in Sweden.[30]

The most interesting aspect of this controversial behaviour is the fact that the people supporting TPB are not proposing a limitation on copyright or a more equitable legislation which could take in consideration the technological contributions of the last century, but rather, they are putting in question copyright itself. They are asking if legislation devised to regulate the printing books in the Eighteen century still makes sense with the new directions of contemporary technology[31]

Organizing its activities around the right of free speech and sharing ideas, TPB started to support and organize multiple websites which claim to be uncensored hosting for texts,[32] images,[33] blogs,[34] a service of temporary mailbox to avoid spam and privacy intrusion,[35] and a service for anonymous Internet connection.[36]

Freedom of speech and anonymity over the Internet are the most important themes that the group is promoting, and their campaign is meant to mobilize a broader group of people around the world aimed toward identifying governments’ restrictive legislations on the freedom of speech over the Net, promoting protests and demonstrations against those rules, and supporting – with both technical competence and banners on blogs and website – the people living in countries where censorship is broadly performed.[37]

“The Pirate Bay” and modern cyber-piracy, refusing the traditional rhetoric associated with piracy and stressing the fight for freedom embedded in image of Golden Age piracy, are hitting the goal of being provocative about a fundamental political issue. Moreover, accepting the epithet and reframing it as symbol of political engagement, they question what had remained largely unexamined for at least three centuries: who is protecting copyrights? At what price do we enforce a law which privileges someone and penalizes the majority? Who are the real “pirates” in a context where creativity and freedom of expression are penalized by the very same laws which were issued to protect them?[38]

The politically engaging problem represented by the very status of pirates – after centuries of criminalization and condemnation without appeal – comes back to the core of the question of legitimacy: “because I do it with a petty ship, I am called a robber, while you who does it with a great fleet are styled emperor.”[39]

Conclusion

In this article, I have briefly examined the semantic expansion of the word “piracy” in popular discourse, from the first media characters (pirates of the Golden Age) to the context of print capitalism and copyright, and finally, the current debate regarding cyber-piracy. We demonstrated how criminalization is a strong social weapon through which markets and governments have shaped a new juridical institute whose existence and utility by itself was under question. The use of the legal definition of hostis humani generis had the result of taking pirates out of society, with the consequence that they were no longer carriers of rights, and thus, could be eradicated without further questions. In terms of social control, pirates are the great enemy who mobilize forces and armies against them, dangerous outsiders who threaten the “rest of us”. The fact that pirates call into question a dominant system of consumption, production, and regulation is rarely taken into consideration. But modern cyber-pirates, accepting and reorienting this epithet traditionally considered a symbol of criminal activity, revitalize the revolutionary spirit of the Golden Age of piracy, embedded in the cultural and religious movements emerging before and during the English Revolution; reinterpreting and reframing this epithet, they question the fundamental rules that set the parameters of social legitimacy.

Notes

1. This article was possible thanks to the hospitality of Bill and Susie Tyne, and the precious help of Heath Cabot. [↑]

2. The well-known quotation in Saint Augustine, (City of God, book 4, chapter 4) about the pirate caught by Alexander the Great offers an important aperture on this topic [↑]

3. See e.g. Peter Lamborn Wilson, Pirates Utopias, Moorish Corsairs & European Renegados (Brooklyn, NY: Autonomedia, 1995); Peter Earle, Corsairs of Malta and Barbary (London: Sidgwick and Jackson, 1970)  [↑]

4. “And it was the rise of that Europe with its Atlantic horizons that was to decide the destiny of the inland sea.”, Fernand Braudel, The Mediterranean in the Age of Phillip II, (New York: Harper & Row, 1966), I:24 [↑]

5. On the side of the formal recognition given by the Pope Alexander VI with the Bull Intra Caetera and ratified with the Treaty of Tordesillas (1494) and then the Treaty of Zaragoza (1529)  [↑]

6. The use of privateers in this fight for the hegemony has been broadly studied: Harry Kelsey, Sir Francis Drake, the Queen’s Pirate, (New Haven: Yale University Press, 1998); Kris E. Lane, Pillaging the Empire. Piracy in the Americas 1500-1750, (Armonk-London: M.E. Sharpe, 1998); Tony Barrow (ed.), Pressgangs and Privateers, (Tyne and Wear: Bewick Press, 1993); Peter Earle, “English Sailors, 1570-1775”, in Paul C. Van Royen, Jaap R. Bruijn, and Jan Lucassen, ’Those emblems of hell?’ European Sailors and the Maritime Labour Market, 1570-1870, (Research in Maritime History, no. 13, St. John’s: International Maritime Economic History Association, 1993); Edgar S. Maclay, A History of American Privateers, (New York: Appleton and Company, 1899)  [↑]

7. Marcus Rediker, Between the Devil and the Deep Blue Sea. Merchant Seamen, Pirates and the Anglo-American Maritime World, 1700-1750, (Cambridge: Cambridge University Press, 1987); Marcus Rediker, Villains of All Nations. Atlantic Pirates in the Golden Age, (Boston: Beacon Press, 2004)  [↑]

8. Two treaties of peace have to be underlined, here: the Treaty of the Pyrenees (1660) and the Treaty of Utrecht (1713). After both treaties the number of privateers dropped, while the number of pirates considerably increased. [↑]

9. For an impressive analysis of the social composition of piratical crews and the reason of the choice of becoming pirates, see Rediker 1987, 10-152 [↑]

10. Emblematic was the case of Henry Morgan, appointed to a public office in Jamaica – where he had bought wide sugar plantations thanks to his attacks – after a career between piracy and privateering; see Cordingly, 43 [↑]

11. see Rediker 2004 [↑]

12. The refusal to take part in the slave trade is still controversial. Some pirates were actually attacking slave ships in order to sell the “cargo” by themselves, but there are multiple example of crews incorporating former slaves: see Kenneth J. Kinkor, “Black Men under the Black Flag”, in Bandits at Sea. A Pirate Reader, ed. C. R. Pennell, (New York and London: New York University Press, 2001), 195-210 [↑]

13. On the motivations and freedom spirit of pirates in the Caribbean see J. S. Bromley, “Outlaws at Sea, 1660-1720. Liberty, Equality, and Fraternity among the Caribbean Freebooters”, in History from Below. Studies in Popular Protest and Popular Ideology, ed. Friederick Krantz (Oxford: Basil Blackwell, 1985, 293-318)  [↑]

14. His own skills and merits, since pirates were gathered mainly in male communities. On this aspect – and the cases of female pirates – see Marcus Rediker, “Liberty beneath the Jolly Roger: The Lives of Anne Bonny and Mary Read, Pirates” in C. R. Pennell, 299-320; John C. Appleby, “Women and Piracy in Ireland: From Gráinne O’Malley to Anne Bonny” in C. R. Pennell, 283-298)  [↑]

15. This hypothesis is based on the outcomes of Christopher Hill’s researches on the English Revolution. See, for instance, Christopher Hill, “Radical Pirates?” in The Collected Essays of Christopher Hill – Vol. Three, People and Ideas in 17th Century England, (Brighton: The Harvester Press, 1986, 161-187); and Christopher Hill, The world turned upside down. Radical ideas during the English Revolution, (London: Penguin, 19724)  [↑]

16. a pen name for Daniel Defoe, according to John R. Moore, one of the most famous biographer of the English writer. The attribution has been contested in favour of an actual former pirate, maybe helped by Defoe since the second edition of the book, since which numerous biographies, some of them invented, were added. [↑]

17. we are here referring to the edition edited by Schonhorn, above quoted as Defoe [1724] 1972 [↑]

18. Defoe, 244 [↑]

19. Jeffrey Gettleman, “Somali Pirates Tell Their Side: They Want Only Money”, The New York Times, September 30th, 2008, http://www.nytimes.com/2008/10/01/world/africa/01pirates.html?ref=world as visited on March 18th, 2009. [↑]

20. for those who are interested in this aspect, see Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox, (New York: Hill and Wang, 1994); Luman Ray Patterson, Copyright in Historical Perspective, (Nashville: Vanderbilt University Press, 1968); Mark Rose, Authors and Owners: The Invention of Copyright, (Harvard: Harvard University Press, 1995)  [↑]

21. William Cobbett, Parliamentary History of England, (London: R. Bagshaw, (1806-1820) vol. XVII [↑]

22. The most recent example is Amazon’s Kindle device, which can download books, newspapers, magazines, and other contents paying a little fee. [↑]

23. for have an idea of how widespread modern sea piracy is, see ICC, IMB Piracy Reporting Centre, http://www.icc-ccs.org/index.php option=com_content&view=article&id=30:welcome-to-imb-piracy-reporting-centre&catid=28:home&Itemid=12 (August 2009)  [↑]

24. The website has been obscured in Italy on August 8th, 2008. See Repubblica, Oscurato Pirate Bay Il sito: l’ Italia ci censura, http://ricerca.repubblica.it/repubblica/archivio/repubblica/2008/08/13/oscurato-pirate-bay-il-sito-italia.html (August 2009) and Claudio Del Frate, P2p, l’Italia censura il sito Pirate Bay. Ma i pirati si attrezzano: ostacolo aggirato, http://www.corriere.it/scienze_e_tecnologie/08_agosto_12/pirate_bay_delfrate_456d0986-6880-11dd-859b-00144f02aabc.shtml (August 2009)  [↑]

25. see The Pirate Bay, Legal threats against The Pirate Bay, http://thepiratebay.org/legal (August 2009)  [↑]

26. on April 17th, 2009 – see Eric Pfanner, Four Convicted in Sweden in Internet Piracy Case, http://www.nytimes.com/2009/04/18/business/global/18pirate.html?_r=1 (August 2009)  [↑]

27. see The Pirate Bay, Hey, send support to The Pirate Bay!, http://trial.thepiratebay.org/ (August 2009)  [↑]

28. see The Pirate Bay, Thanks to S.a.L.E – We have physical space in Venice :), http://embassyofpiracy.org/2009/05/thanks-to-sale-we-have-physical-space-in-venice/ (August 2009); but see also Manifesta7 Staff, Artists: Piratbyrån (The Bureau of Piracy), http://www.manifesta7.it/artists/390 (August 2009)  [↑]

29. The harsh reaction of the website to the Italian interim injunction collected more than five hundred comments in few days: see The Pirate Bay, Fascist state censors Pirate Bay, http://thepiratebay.org/blog/123 (August 2009)  [↑]

30. See Eric Etheridge, Morning Skim: The Pirates Win! The Pirates Win!, http://opinionator.blogs.nytimes.com/2009/06/08/morning-skim-the-pirates-win-the-pirates-win/ (August 2009)  [↑]

31. see, for example, the website http://iwouldntsteal.net/ (August 2009) and the project-documentary Steal this film, http://www.stealthisfilm.com/Part1/ (July 2009)  [↑]

32. see http://pastebay.com/ (August 2009)  [↑]

33. http://bayimg.com/ (August 2009)  [↑]

34. see http://baywords.com/ (August 2009)  [↑]

35. see http://slopsbox.com/ (August 2009)  [↑]

37. see Kopimi, Embassy of Piracy, http://embassyofpiracy.org/ (August 2009); We Re-build, We Rebuild, http://werebuild.eu/wiki/index.php/Main_Page (August 2009); and Anonymous, Anonymous Iran, http://iran.whyweprotest.net/ (August 2009), on the side of the already mentioned IPREDator. [↑]

38. Those arguments can be traced both in TPB websites and in ‘brother-sites’, and are anyway corollary of the more general discourse about the freedom of the Net. [↑]

39. Saint Augustine, City of God, Book 4, Chapter 4 [↑]

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I recently was awarded a Ph.D. in Philosophy and Sociology of Law. I am particularly interested in topics involving power and legitimization, and Internet, technology and society. My research examines the criminalization of cyber-pirates in both legal and broader social contexts.
All posts by: Salvatore Poier | Email | Website

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