The Piracy Paradigm: Framing U.S. Copyright Law

K. Matthew Dames, Syracuse University

Abstract

Few terms have been used more frequently in copyright discourse than "piracy." It is so pervasive within American copyright discourse that few bother to explain what it means. It is presumed we all understand copyright "piracy" so thoroughly that the word does not require definition, clarification or investigation. A primary reason why "piracy" is so accessible is because it conjures images of theft and illegality, while simultaneously evoking the celebrated American concepts of exclusivity and propriety.

But "piracy" is not simply a metaphor or rhetoric. Instead, "piracy" is a paradigm: a normative model of copyright that reinforces convictions related to property, control, theft, commoditization, and the presumption that each use of, or access to, a protected work will result in compensation or economic return. While copyright and communications scholars have studied "piracy" as rhetoric or metaphor, this dissertation is the first to theorize instead that "piracy" is a paradigmatic way of viewing what copyright law has been, what it is, and what it should be in the future.

This dissertation is a historical critique of U.S. copyright law and policy, presented across three distinct, interrelated studies. Using framing and copyright theory, methodologies such as policy analysis, historical analysis, and narrative; and the foundation of Thomas Kuhn's The Structure of Scientific Revolutions, the author theorizes that "piracy" has been the dominant paradigm governing American copyright law and policy. The author defines the "piracy paradigm," and shows how its elements - property, commodity, technology and emergency - consistently have recurred over time to bound and control copyright discourse. Additionally, the author establishes that the "piracy paradigm" routinely has manifested itself in copyright legislation, including the Prioritizing Resources and Organization for Intellectual Property Act of 2008 ("PRO-IP Act").

Finally, the author advances the notion that contemporary copyright conflicts result from the emergence of a competing paradigm - the "open paradigm" - that has been developed by non-traditional stakeholders and which adopts non-traditional views about the copyright regime. The author indicates the conflict between the "piracy" and "open" paradigms likely will influence copyright law, policy, and norms for the foreseeable future.