Thanks for mentioning the article and raising this issue, but I’d like to offer a clarification.

I don’t think I’ve ever posed “theft” as an alternative to “piracy,” and I believe your article suggests I do. Stephen Dubner of the NY Times’ Freakonomics blog asked whether we should use “piracy” to mean theft in light of the Navy rescue of Capt. Phillips. We at Copycense noted that we had dealt with this back in April 2007 and supported this with recent scholarly evidence, some of which was published in Information Today.

Later, Dubner proposed “downlifting” as an alternative.

Black’s Law Dictionary has used “piracy” as a synonym for an unlawful taking since its first edition, but West published Black’s first edition long after either OED made reference to the term, and long after the origins of the term and the practice, per Alfred Rubin’s analysis. Black’s use of the term in relation to intellectual property also comes after British publisher and authors used the term to describe American authors’ unlawful use or republishing of works protected by British law.

Since 2007, when Copycense first addressed this issue, we always have referred to these issues as “infringement” or “alleged infringement,” mostly to emphasize that copyright owners must meet a burden of proof in these issues.

Unfortunately, the “proof” that copyright owners and their lobbyists too often have set forth is a set of allegations that are supported by little or questionable evidence. What is even more unfortunate, however, is that the courts and Congress often have abdicated their oversight and balancing roles and allowed allegations of “piracy” — in file sharing lawsuits, in the calculations for the Special 301 process, in requests for injunctions in civil litigation, to name three — to stand as verified truths.

Separately, we are unsure whether the jury’s award in the Thomas-Rasset case is worthy of a constitutional challenge. From our read of several secondhand reports of the trial, however, it seems that the jury found wholly incredible and unbelievable the defendant’s story about alternate theories of how the music came to be on her computer.

In contrast to allegations of “piracy,” the verdict in that case seems to have been decided on facts and evidence that was vetted and verified.

K Matthew Dames
Executive Editor
Copycense