Starting in September, 2012 I was a Fulbright Fellow at Harvard’s Berkman Center. In the previous year I asked Charlie Nesson, if he could sponsor my application, and I was extremely honored that he said yes. Among the so many excellent scholars at Berkman I specifically chose Charlie for his efforts in the Tenenbaum case.

 

I identify myself as a piracy researcher, which has its own drawbacks. Though it clearly states what I do (research piracy), it has the no-no word in it. I’ve done some work on how the word piracy is being used by different groups, and it seems that apart from pirate parties, and the Pirate Bay like folks, there is a universal mistrust of this word. People simply don’t want to get associated with it in any way: most academics and activists are quick to establish that they are not in any way want to be seen as someone condoning piracy. Even if and when they offer supportive arguments for the free exchange of cultural goods, they want to distance themselves from copyright infringement. This is especially true with lawyers and legal scholars, and I think I understand why that is. It would be very difficult to maintain academic credibility in the (american) legal / educational system with a tacit or explicit support shown towards the willful disregard of law in general and the breaking of something seen as a fundamental legal /moral infrastructure in the information society (copyright protection).

Just to illustrate how difficult position that is, take a look at how Larry Lessig has dealt with this challenge recently. In his speech “Aaron’s Laws – Law and Justice in a Digital Age”” (Transcript: part I, and part II) he had to make something of the death of Aaron Swartz, who committed suicide while being investigated for putting actions behind the words of his Guerilla Open Access Manifesto. Lessig goes into great lengths to avoid being caught condoning piracy, but he also had an obligation: to stand up for Aaron’s cause. He uses a number of nice tricks: he declares that he is not speaking as an academic, ” but as a citizen and a friend”. He creates an alternative universe in which Swartz was supposedly not against all copyright but only against “dumb copyright”. He also elegantly circumvents the question whether what Aaron did with the mass copying of JStor articles was a copyright violation. He focuses on scientific knowledge and its “public domain status”. But still he has to show support for such actions, which he labels as civil disobedience, and what I regard as plain and simple piracy, not at all different from what is happening on the Pirate Bay.

Because on the one hand, it is very much true, that there is no such a thing as “piracy”: there are piracies, many different kinds and flavors, from sharing academic articles among peers, via strange people camming the latest Hollywood blockbuster for no obvious gain, to the rich and poor kids around the world downloading it. One cannot stack them together and say: they are all the same. But, on the other hand, this is exactly what is happening, since all of them are judged by the increasingly similar copyright laws around the world: an infringement is an infringement is an infringement. And Aaron, while doing right thing in the frame of academic knowledge sharing, was also plainly breaking not just the letter, but also the spirit of the law, liberating those articles against the expressed will of those rights holders, who decided not to share their articles freely to everyone.

As a piracy researcher, I try to resolve this Janus-facedness of copyright infringement, and persuade others, that, for example, there is not a single, monolithic phenomenon called piracy: each and every case should be judged separately. Which means that there are no dumb and smart copyright laws, as long as there are universal rules trying to handle all these different cases. As Aaron’s case shows, one can do the right thing by violating the very basic foundations of intellectual property protection: that it is the author to decide the fate of her creations. I also argue, that no fair use exceptions, no limitations can account for the immense number of different situations that may arise within the context of the production, circulation, use of cultural goods. We have to rely on locally, communally produced norms to account for the variety of contexts, if we want to reach justice.

So Lessig “got away” with defending piracy Aaron Swartz committed, and I believe he did the right thing when he stood up for him. I respect his work enormously, and I think he did a lot to change the course of copyright development. But I also believe that the different “pirates”, who were and are willing to break the laws commit civil disobedience, have done as much, if not more to shift, if not the copyright laws, but the actual business practices of rights holders to get the world closer to cheap, if not free universal access to all cultural production of humanity.

Cherlie Nesson did not have such reservations when he decided to lead the defense of Joel Tenenbaum, a pirate noone gave speech in honor of. Whether he did a good job or not, is not the subject of this short piece, I believe that he led a heroic fight with many steps I cannot explain, and much more I think I understand. But, being an adventurous daredevil he is, he was not afraid of the piracy stigma. This is why I am honored to know him, and having had him as a mentor in 2012.