The Pirate's Tale

Introduction: 21st century piracy

‘No black flags with skull and crossbones, no cutlasses, cannons, or daggers identify today’spirates. You can’t see them coming; there’s no warning shot across your bow. 

Yet rest assured the pirates are out there. [ ] The pirate’s credo is still the same – why pay for it when it’s so easy to steal’

  RIAA website 

When I joined the music industry in 1992, the unauthorised copying of recorded music was not top of the list of economic threats to the corporation. Bootlegging, which is a term used for the exploitation of unauthorised recording of live music, was at least as big a concern, especially in the USA. 

As for the unauthorised copying of authorised recordings, the campaign which had been launched in the 1980s under the Jolly Roger logo of a cassette and crossbones, and which declared that ‘Home Taping is Killing Music’, had run its course. It was parodied, and at least partially discredited by the sustained healthy growth of the music industry in developed markets.

Domestic 'piracy' (home-taping and private sharing) was seen as quite distinct from commercial piracy.  The music industry was well aware of large scale unauthorised cassette and CD manufacturing activities. These had been going on since the invention of the recording formats, especially in Latin America, Eastern Europe and Asia. The scale of such activities was relatively measurable. Fighting piracy was a priority of the industry trade bodies (RIAA, BPI and especially the IFPI) and their anti-piracy initiatives and reports were closely monitored.  However, the overall feeling at that time was that piracy was manageable, especially when pirate copies were often physically distinguishable and inferior to the authorised versions. It thrived mostly in foreign markets which were still underinvested by the major record companies. Ironically piracy served, to some extent, as an informal and unacknowledged source of market-research and market-making, prior to increased investment in some territories. Once commercially organised piracy had grown to a certain level, it was indicative that record companies could justify asserting their rights and investing more heavily in that territory, always presuming that the local government had an appetite for enforcing its copyright laws. 

Piracy was also indicative of which artists and genres were most in-demand in those markets. But to put all of this in the perspective of the time, even if some territories had worryingly high physical piracy rates, it was believed that at a global level piracy represented less than 10% of the total market. As long as it was kept below that level, it would not substantially inhibit the continued growth of the authorised market. 

By 2000, the industry view of piracy had changed dramatically. Home-taping, and even CD ripping and burning, were to some extent measurable by sales of blank units. By contrast peer-to-peer filesharing played on the worst fears of music executives. Not only could they not control the dissemination of music, they also had no idea how to measure or monitor what music consumers were actually doing. All they knew was that millions of people were accessing filesharing sites, and that hundreds of millions of digital music files were being shared. In the worst case, if one were to judge music consumption simplistically by the number and source of music files on iPods and on computer hard drives, one might have imagined that the market had inverted, and was now 90% ‘pirate’ and 10% authorised. Such a change in the perception of the threat of unauthorised copying called for a drastic response, in both actions and words.

There have been several strands to the record companies’ digital anti-piracy strategies including:

In the short-term, the focus was on trying to constrain or disable, rather than enable, new forms of consumption. An aggressive litigation strategy, especially through the RIAA, is well documented and decried in the blogosphere. Starting in 2000 and continuing to the present, lawsuits have been brought against a sequence of filesharing sites: Napster , Grokster, Kazaa, Limewire, eDonkey, The Pirate Bay, Megaupload, to name only a few. 

These actions have, in isolation, been mostly successful, but as each one was forced to close, others sprang up to satisfy the huge demand of the burgeoning filesharing community. Legal actions against deviously clever file-sharing services were very unpopular with active file-sharers, and regarded by new-age technologists and web-savants as futile given that the infrastructure of the internet does not recognise territorial customs and laws. Nevertheless, the traditional industrial logic was clear enough: seek the protection of the law against alleged infringements of copyright and shut the services down.

In contrast to the understandable industrial reaction of pursuing identifiable filesharing services, a parallel strategy drew much less, if any, public support. This strategically questionable and alienating development was the pursuit of individual users on a grand scale. Exploiting provisions of the 1998 Digital Millennium Copyright Act (DMCA) subpoenas were issued in the USA to internet service providers(ISPs)requiring them to reveal the names and identities of alleged infringers. Huge numbers of individual lawsuits followed, and between 2003 and 2006, the RIAA had brought lawsuits against more than 17,000 individuals. Public opinion soon turned against the industry when unwitting or naïve users such as young children and grandmothers were caught in the dragnet approach.

Whilst legal action against consumers, persistent up-loaders and filesharing services has continued to this day, the music industry has moderated its aggression. Another focus of its attention was to lobby for statutory solutions which make it easier for content owners to get ISPs to co-operate in giving fair warnings to infringing users which, if ignored (‘3 strikes’), could lead to the suspension of the users’ internet service altogether. Such a provision was one of the most notable elements of the UK’s Digital Economy Act (2010) but proved slow and contentious to implement, and was eventually abandoned. 

Consistent with its reputation as a nation with high standards and rules of cultural and intellectual property protection, the French government was the pioneer of the 3 strikes concept in 2009 with the previously mentioned law known as Hadopi. However, even in France the law provoked anger and was revoked in July 2013, amidst questions of its effectiveness and arguments that the punitive penalty of cutting internet access was draconian and disproportionate to the offence. 

The idea that internet access has become accepted as a basic human right was evidenced in 2012 when a UK Court of Appeal reversed an order which was preventing a convicted child sex-offender from using the internet. The judge remarked that it was ‘entirely unreasonable to ban anybody from accessing the internet in their home’.

There is already much written on the topic of record company reaction to file-sharing, and I do not intend to go into detail on the legal developments. Of more relevance to the theme of this book are the moral question of copying and the narrative of piracy which has been adopted in these corporate digital anti-piracy strategies, especially in the ‘education’ of the public about copyright-infringement. 

The US has been more active than the UK in this regard, and the film industry has been much more visible in its campaigns than the music industry. Perhaps the best-known example is the short video (49 seconds in length) produced by the Motion Pictures Association of America in 2004 and included for several years thereafter as part of the anti-piracy warnings on DVDs and amongst trailers in cinemas. Against a music soundtrack which includes a police siren, a girl sits in a bedroom downloading a movie, interspersed with footage of various types of street theft with the captions:

You wouldn’t steal a car; you wouldn’t steal a handbag, you wouldn’t steal a television; you wouldn’t steal a movie.

Downloading pirated films is stealing. 

Stealing is against the law.

Piracy. It’s a crime.

Consistent with the forced viewing of the ubiquitous copyright warning text which was incorporated into DVDs, this video could not be skipped, meaning that legitimate purchasers of the video were forced to view it each time they viewed the movie. It was heavily criticised and, like the old ‘Home-Taping is Killing Music’ campaign, it has been much parodied. 

In an ironic twist, the composer of the music commissioned for the video brought a legal action based on the fact that it was only intended for use at a film festival, and its wider copying and exploitation within millions of DVDs was therefore unauthorised. Although he was ultimately successful in his legal action, it was a long and messy process. This is a good example of the problem with copyright law: it is complex to understand and to administer and, more importantly, the degree of ‘wrongness’ of any given instance of copyright infringement is difficult to nail down, and therefore to legislate for, and to prosecute. 

For all these reasons, it is well worth examining the societal role of the pirate, historically and symbolically, in more depth.

The pirate as a cultural icon

It is clear from all of this that the underlying ethical question of copying is as opaque as the laws which try to encompass it. The word pirate is similarly ethically opaque, consistent with the diversity of its etymology. There is a cachet about pirates which is nowhere better illustrated in recent times than in the character of Captain Jack Sparrow, richly developed by the actor Johnny Depp in the spectacularly successful Walt Disney film franchise, The Pirates of the Caribbean

As a 21st century cultural icon, Sparrow has received some impressive tributes, according to his long Wikipedia entry:

Those who argue that Generation Y, or Millennials, are demographically characterised by narcissism and a strong sense of entitlement would no doubt see Sparrow’s enormous popularity, despite his selfishness and trickery, as consistent with their propositions. Most unauthorised downloading happens despite people knowing that what they are doing may be illegal, and various techniques are employed by ‘pirates’ to justify their behaviour. 

Ingram and Hinduja (2008) demonstrate that these justification techniques are consistent with Sykes and Matza’s (1957) techniques of neutralisation and theory of delinquency. They include: denial of responsibility, denial of injury, denial of the existence of a victim, a tendency to condemn the condemner (e.g. the record companies for their greed, control-freakery or incompetence), and an appeal to a higher loyalty or ideology. 

However we theorise it, we should not be surprised that a combination of social factors have all come together to invite disruption of the old model that protects intellectual property rights. These factors include: 

A gap between the rules of law and the new social norms shaped by technology has arisen. In this gap an alternative worldview is fostered, where peer-group values and individual conscience constitute a higher authority than an anti-piracy warning on a DVD. 

In this context it may be an ironic ‘own-goal that Disney, as one of the most robust defenders of its copyrights and a vocal lobbyist for stronger copyright protection, has at the same time romanticised the pirate so effectively for the filesharing generation.

The historical origins of the intellectual property pirate

There have been claims that the first intellectual property 'pirate' was Saint Columba, the sixth century Irish monk who made copies of his Abbot’s psalter without permission. 

The dispute was about political power and the control of the spread of Christianity in a pagan society, thus the Abbot looked to the local King Diarmait for resolution. With the line ‘to every cow its calf, to every book, its copy’, he ruled in favour of the Abbot and against Columba. 

Diarmait’s analogy of birth and lineage does raise an interesting question about the relationship of copies to their originating ‘master’, but as there is no evidence of the use of the word pirate or piracy, this incident may be better characterised as the first account of an institutionally remedied copyright infringement, rather than an account of piracy.

The use of the word piracy in the context of theft of intellectual property does not emerge until the 17th century where it becomes a useful construct for those vying for control over publishing. Importantly, it pre-dates the construct of authorial or intellectual property. By the middle of the 17th century, the legacy of the English civil war was a traumatised society and an intellectual anarchy where the old legal and administrative structures and customs of the book trade had broken down. The popular press was ‘viciously partisan, violently sectarian, ruthlessly plagiaristic, and often wildly credulous’ (Johns, 2009). In this context, the pirate became a necessary invented antagonist in the establishment of publishing integrity and rigour, and more generally in the fight to define civilized society. Whilst there was broad consensus about the print pirate’s destructive influence over civilized society, there was a struggle to define and to claim the singular role of the worthy protagonist in this narrative.

The incumbent candidate was the community represented by Stationers’ Company, a Crown sanctioned institution which for almost 200 years had enjoyed a significant influence and control over the new technology of printing, including censorship. This institution had lost its exclusive control in the civil war years. Milton’s Areopagitica (1644) is an example of the more worthy and eloquent attempts to encourage a vibrant public sphere and to establish freedom of the press during that period. But unlicensed printing was equally seen as anarchic and destabilising, even as a weapon. The Stationers’ Company’s control was therefore restored by the Licensing of the Press Act in 1662, which was largely driven by the desire of the newly restored Charles II’s parliament to prevent ‘Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets’.

Despite this apparent alliance between trade and state, there were amongst those loyal to the Crown, some who believed that printing had become a corrupt oligarchy of booksellers and should be radically reformed or eradicated. The alternative proposition, spearheaded by an old Cavalier called Richard Atkyns, was a revival of the royal patents system, whereby printing was a privilege granted by the Crown to ‘gentlemen’ who, he argued, were less corrupted by the mercenary interests of trade and speculation. Atkyns claimed to be the rightful heir to a patent granted by Elizabeth I for all books on the common law. During the civil war the Stationers’ Company had taken effective control of the publication of common law books through their entry in the Stationers Hall register. 

The control of common law book publishing was particularly valuable in a society which was struggling to re-establish legitimacy and authority. The battle was thus a profoundly political one in which all publishing interests were at stake. Each claim rested on a different concept of ‘property’. For Atkyns’ argument to be credible, he needed to rewrite history and argue that the art of printing belonged to the Crown. He did this by claiming (Atkyns 1664) that Henry VI had commissioned the creation of a community of printers as Crown servants, prior to Caxton’s introduction of printing to England as an autonomous activity of private craftsmen. Printing therefore ‘appertaineth to the Prerogative Royal and is a Flower of the Crown of England’ (Atkyns cited in Luckombe 1771) and was therefore subject to royal control through license or patent. 

According to Luckombe, Atkyns’ claim was dubious. To counter Atkyns’ new narrative, the Stationers invented their own concept of property: authorial property, whereby an author was said to have an absolute right to his work. By contracting with the bookseller to register it at Stationers Hall, it would be preserved in perpetuity through policing by the bookseller. As authors were rarely the beneficiaries of the Stationers’ registration process, this was a radical departure from prevailing concepts of author rights. Adrian Johns (2009) argues that: 

‘this may be the earliest explicit articulation of the idea of literary property - of an absolute right generated by authorship, which could serve as the cornerstone of an entire moral and economic system of print. Certainly the idea had no clear precedent behind it. It was nowhere referred to in the [Stationers’] company’s own founding documents, nor in the century-long record of negotiations at its court, nor in the broader legal arena.’ (p.38)

350 years of discursive reasoning later, we are comfortable with some form of authorial property as common sense. By contrast, in the late 17th century the idea that any and all writers could claim natural rights of ownership and control over whatever they wrote, was a radical and provocative challenge to other forms of authority, legitimacy and social order. 

The author as original creator, and owner of natural rights was far from being established as the logical hero-protagonist in a narrative which already had such a clear villain-antagonist. Unauthorised copying was seen as socially destabilising and antithetical to civilization. Those who engaged in it needed to be identified by an appropriate label. ‘Pirate’ fitted the bill and fell into common usage relatively quickly and uncontentiously. But concepts of authorial property rights were newer, more contentious and took much longer to be adopted. 

Atkyns’ argument prevailed in the short-term and the Stationers’ charter was revoked in favour of the system of gentleman patentees, though not until after Atkyns’ death in 1677. Following the removal of King James II in 1688, the new government of William and Mary allowed the Stationers’ license to lapse in 1695, and from then on a new era began, where the notion of natural rights of the author would gain currency, leading to the Statute of Anne in 1710, widely regarded as the first copyright law which became the influential source of further laws, both in Britain and overseas.

Nevertheless, it is relevant to reflect on the conundrum that the intellectual property pirate was effectively invented before the ‘property’ he was alleged to be stealing was clearly understood, defined, and accepted.

The golden age of piracy - heroes or villains?

Given the important role played by the pirate metaphor (if it still is a metaphor), in constructing and reinforcing the concept of intellectual property, it is interesting to consider the broader cultural origins of the ‘original’ pirate in his non-intellectual property sense. 

As for the etymology of the word piracy, Adrian Johns (2009) claims the word derives from a distant Indo-European root meaning a trial, attempt or experiment. He argues that its association with seafaring lawlessness became prominent through Thucydides’ (c.460-c.395 BC) account of the suppression of the peiratos as a key element in the rise of Athens, before which piracy had been seen as honourable. After that time, pirates were routinely portrayed as ‘irritants to the civilized order’, and thus ‘civilization was the antithesis to piracy’ (Johns 2009 p.35). 

For Cicero, a prominent denouncer of pirates, it was not their violence, but their unsociability that seemed to be their defining characteristic and he therefore didn’t differentiate seafaring pirates from land-based ones. He drew an important distinction by seeing pirates as situated beyond, rather than within, society. Perhaps because the sea provides a more suitable domain for remaining beyond society, the ship-based pirate has acquired a stronger cultural identity.

In what he describes as a genealogy of Captain Jack Sparrow, rather than a history of piracy, Martin Parker (2009) traces the fascinating relationship between historical and fictional representations of piracy, which he finds ‘too intertwined to be disentangled’ (p.169). Though there is no ‘truth’ of piracy which is easily accessible, its varied representation is useful as a medium to raise questions about the relation between the individual and the state, and about the boundaries and the legitimacy of trade. 

The ‘golden age’ of piracy is generally regarded as Atlantic piracy in the 17th and early 18th centuries. This may explain its parallel emergence as a metaphor for unauthorised copying over the same period. It is thus worth considering what it was that made piracy so culturally rich and colourful.

Seafaring pirates of the golden age owe their existence to the colonising and trading ambitions of European nation states. It is the territorial limits of nation-states and the practical ungovernability of the oceans which permit pirates an alternative existence ‘beyond society’. Pirates can be found at the extreme end of a range of activities which begin with privateering, sometimes referred to as state-licensed piracy. Privateer is another word which emerges during the 17th century, and is defined as ‘an armed vessel owned and crewed by private individuals, and holding a government commission, known as a 'Letter of Marque', authorising the capture of merchant shipping belonging to an enemy nation.’ (Oxford English Dictionary).

Captains and crews of these vessels often went beyond their state sanctioned commission for their own gain and pleasure. It is the extent to which such transgression is tolerated or punished which is of most relevance to the theme of this book. Privateering was an efficient mechanism for economic and political expansion. It also helped countries to minimise the costs of maintaining a fomal navy. This usefulness meant that the transgressions of privateers were often overlooked. Queen Elizabeth I’s relationship with Sir Francis Drake, whom she allegedly addressed as ‘my dear pirate’, is one example of how much leeway state-sponsored pirates had. Their activities, though often illegal and violent, did not stand in the way of royal favour and career advancement.

If the golden age of piracy began with a sense of national loyalty, tales of derring-do, and a convenient blurring of rules and law enforcement, it later evolved into something portrayed as much more cruel and violent, and certainly not the feasible pursuit of a gentleman. The law became ever more aggressively enforced, leading to escalations of violence between pirates and the authorities.

What drove the change was the rapid growth, in operational scale and political power, of the merchant classes and their international trade. Growth required the investment and the protection of capital, and this required the strict enforcement of law and order. By the end of the 17th century the merchants had formed alliances with aristocrats and state bureaucrats. This meant that ‘there was to be no place for pirates in this new world, no place for individualist marauders on the periphery of empire’ (Earle 2004 p.146).

Being outlaws, and therefore beyond the ‘protection’ of the law, pirates could be hung wherever, and by whomever they were found. The powers that sought to stamp out piracy constructed the notion of a universal jurisdiction which could ride roughshod over foreign state laws and customs. This development had, and still has, a profound impact on international law. Kontorovich (2004) shows how 20th and 21st century advocates of a new universal jurisdiction (“NUJ”) have sought to establish its legitimacy by ‘invoking piracy as precedent, justification and inspiration’ (p.184). 

The justification of NUJ is based solely on the heinousness of the alleged conduct. War crimes, torture and terrorism tend to be the focus points, but encouraging people to think of Al-Qaida as trading pirated DVDs for flying lessons suggests that continuing to associate piracy with horrific violence is a convenient rhetorical resource for those industries which are most vulnerable to piracy (David and Kirkhope 2005 p.90). Kantorovich argues that, in using piracy as its precedent, courts, scholars and political proponents of NUJ have uncritically and selectively accepted portrayals of piracy as heinous crimes. Countering that view, historical analysis would suggest that ‘piracy was not regarded as particularly heinous’. Nevertheless, an emphasis on the vicious and violent aspects of pirates continues to support the metaphorical power of piracy in claims about the universality of international law and the protection of international trade.

Fictional heroes or villains?

One book has had an unquestionably dominant influence on the popular images of the golden age pirate: The General History of the Robberies and Murders of the Most Notorious Pyrates, and Also Their Policies, Discipline and Government, by Captain Charles Johnson. It was first published in 1724 and has had 70 subsequent editions.

In his introduction to the 1998 edition of the book, David Cordingley states that the modern conception of pirates comes from this highly influential book and claims that ‘the majority of the facts have been proved to be accurate’. Others have taken a different view, arguing that it is ‘more fiction and disguised social criticism than serious history’ (Parker 2009). 

The book recounts tales which are both inspirational and cautionary, and covers characters who were celebrated as having a certain nobility, some with an anti-capitalist Robin Hood’ morality, as well as others who were reviled as psychopaths. Common to many of the tales is the implication of alternative ways in which individuals and groups could co-exist. 

Captain Charles Johnson is almost certainly a pen-name, and some believe it may have been a pseudonym for Daniel Defoe. This seems plausible, given the resonance of Robinson Crusoe (1719) with the wild and remote island-based, occasionally utopian, backdrops of The General History and its social critique.

In any event, the book paved the way for the 19th century development of the romantic remoteness and mystery of the pirate, allowing him to be both villainous and noble, as fictionalised by writers such as Byron, Walter Scott, Charles Kingsley, Washington Irving, James Fenimore Cooper, Edgar Allen Poe, R.M. Ballantyne, and Robert Louis Stevenson. 

In the first half of the 20th century Hollywood made the genre its own, helped by the books of Rafael Sabatini and Howard Pyle. In movies, the pirate became a less ambiguous and rather wholesome swashbuckling figure. Captain Blood, loosely based on the real historical figure Sir Henry Morgan, was played by Errol Flynn and is one of the defining portrayals of the 20th century. Movie pirates are generally characterised as falsely accused, or pursuing alternative justice; sometimes a dispossessed aristocrat, a rebel with a cause, or essentially any man ‘fighting for a right in a world that does not understand the right as he sees it’ (Parish 1995). 

Despite the commercial success and popularity of so many pirate films, the genre eventually lost the wind from its sails. By the second half of the 20th century, film representations, along with TV and comic strip portrayals, veered towards comedy, pastiche and the children’s market, e.g. Captain Pugwash (1957); Yellowbeard (1983); Hook (1991). The pirate became emasculated and often a figure of harmless fun. Cut-throat Island (1995) is indicative of the creatively-exhausted nadir of pirate-themed movies. It was claimed to be the biggest box-office failure of all time, leading to an eight-year hiatus before Captain Jack Sparrow revived the genre in Disney's 2003 film, Pirates of the Caribbean.

Piracy as a resistance to privatisation and prejudice

No man will be a sailor who has contrivance enough to get himself into a jail’ (Boswell, 1791)

Samuel Johnson’s well-known phrase reinforces the popular notion that for sailors on lawful commercial and navy vessels of the 16th and 17th centuries, the working life could be cruel, violent, insanitary and miserably remunerated. Life expectancy at sea was shorter than on land. It was not a career that many men chose for themselves. 

The prevailing brutality and oppression of ‘legitimate’ labour, combined with the political radicalism of proletarian rebels who failed to gain political voice in the English Revolution, meant that there was no shortage of articulate and passionate individuals who were attracted to the pirate life. It was an opportunity to be part of an alternative anti-authoritarian and self-determining community. The attraction was supported by a proliferation of pirate-related tales of abundant ‘virgin’ territories, unspoiled by the tyranny and corruption of church, state and capitalism. 

Being exiled through prejudice and institutional non-compliance, pirate communities were often relatively tolerant and open-minded on matters of race, religion, class and sexuality. Jo Stanley’s Bold in her Breeches (1996) suggests that gender role and behavioural prejudices were also less restrictive in the pirate world.

Being an outlaw of the state did not necessarily imply lawlessness. There are several accounts of pirates having their own well-developed rules, codes and disciplines which were applied with the same rigour as the law. Pirate codes included ‘articles’ that were a form of social contract considerably more egalitarian than commercial or naval vessels. They gave crew members a vote, rights to division of stores and plunder, and even disability benefits. There was also brutal ‘justice’ for those who breached the rules. 

But more significantly (and less depicted in fictional representations) pirate captains were often elected. In such democracy, absolute authority was only asserted during conflict. The details of these accounts of life on-board are varied, but ‘are unified by the absolutely radical idea that authority depended on consent’ (Parker 2009).

With democracy, tolerance, respect and discipline not being entirely uncommon features of pirate code, it is not surprising that favourable accounts of alternative societies spring up around pirate activities. Libertalia is one such utopia mentioned in the second volume of Johnson’s General History. It was established by Captain Mission in northern Madagascar and is founded on equality of ownership, religious tolerance and a democracy with elected councillors who have a three month term. Madagascar is also the location of libertarian settlement formed by Captain Avery as recounted in the King of Pirates (Defoe 1720). 

There is no way of reliably knowing whether these communities existed in the form recounted, and even if they did, for how long and with what success. For my purposes, their historical accuracy is not so relevant. I am more interested in how such positive accounts of pirate solidarity, values, codes and communities remain intertwined with more morally one-dimensional negative accounts, such as Howard Pyle’s (2006) description of Tortuga:

...from that spot, as from a center of inflammation, a burning fire of human wickedness and ruthlessness and lust overran the world, and spread terror and death.. 

The competing narratives are evidence of a long-running rhetorical antagonism between piracy and legality, and between individual freedom and state-authorised power, which has great relevance to current debates over intellectual property reform. The General History is much cited for its radical social critique. From a later edition, Captain ‘Black Sam’ Bellamy, regarded as something of a Robin Hood figure, is cited for his contempt for other captains who ‘submit to be governed by the Laws which rich Men have made for their own Security’. He describes those who give in to such authority as being like a ‘sneaking Puppy’ or as ‘hen-hearted Numskuls’ and asserts the justification of his own code by claiming that the only difference between him and the capitalists is that ‘they rob the Poor under Cover of Law, forsooth, and we plunder the Rich under the protection of our own Courage.’ (Defoe 2005). This is reminiscent of Cicero’s anecdote:

For it was a witty and truthful rejoinder which was given by a captured pirate to Alexander the Great. The king asked the fellow, “What is your idea in infesting the sea?” 

And the pirate answered with uninhibited insolence, “The same as yours in infesting the earth! But because I do it with a tiny craft, I’m called a pirate: because you have a mighty navy, you’re called an emperor”’ 

cited in Johns (2009), attributing to Augustine of Hippo

Similar anti-capitalist sentiment can be found from one of the best known pirates of the golden age, who has the longest entry in the General History: the Welsh captain Bartholomew Roberts, sometimes known as Black Barty. Charles Johnson attributes the following, much-cited, lines to him:

Damnation to him whoever lived to wear a halter’

‘In an honest service there is thin commons, low wages and hard labour. In this [the pirate

life], plenty and satiety, pleasure and ease, liberty and power. And who would not balance

creditor on this side, when all the hazard that is run for it, at worst, is only a sour look or two

at choking? No, a merry life and a short one, shall be my motto.

According to Cordingley, burying treasure was rare, it being much more common to enjoy their plunder while they could. In this sense, pirates deny the legitimacy of property-owning ideology, and they fight those imperialists and capitalists who would accumulate property and wealth and who would wait for returns on investment through the exploitation and deprivation of others. The goal of the pirates seems to have been not so much to accumulate wealth and property as to enjoy it, even if that meant wasting or destroying the possibility of longer term value, including life itself. The words ‘balance creditor’ seem deliberately chosen, in order to make Roberts’ argument by using the double-entry bookkeeping metaphor of the enemy, possibly suggesting Johnson’s (or Defoe’s) underlying political agenda. 

As Parker (2009) points out, ‘if the sea had been a global commons, it was now subject to enclosure on behalf of states, in turn acting on behalf of an emerging capitalist class’. Pirates resisted such enclosure, but having no state or territory, their identity and their capacity to establish a robust and lasting discourse of alternative forms of social organising was as fluid and rootless as the sea upon which they sailed.

The enduring significance of the pirate

Sympathising with 'golden age' pirates may be as romantic and as dangerous as viewing 21st century Somali pirates simply as brave fishermen protecting their coastline against international privateering and toxic waste-dumping. 

The habitual violence of pirates, combined with their lack of respect for property law, mean they are destined always to play the role of the antagonist in a predominantly capitalist, globalising narrative. However, their counter-narrative would have lost its connection with the population at large, and would have disappeared a long time ago, if the motives, morality and fairness of the protagonist's position were less questionable. 

The barefaced confidence and notable election successes of the Pirate Party in various countries suggests that pirates cannot be regarded as solely historical phenomena. Their resurgence, if indeed they ever really went away, indicates a strengthening of a counter-narrative which is morally rooted in the protection of the commons from those who would privatise it. 

Nowhere is this more apparent than in the construction and protection of the ‘virtual commons’. This is symbolised by, though not limited to, the internet. The irony here is that by perpetuating a discourse of piracy, which bases its universal jurisdiction on the ‘heinousness’ of its offences, those fighting piracy inadvertently invite ridicule. Rightsholders often weaken their argument by using an ambivalent metaphor which has lost its power to shock. Depriving an artist of their livelihood may resonate with the public as a disagreeable consequence of unauthorised usage, but it is not the same as robbery with cruelty and violence, especially when the intent is not nefarious. Sometimes it is motivated more by the desire to create, share, inform and educate, rather than just free self-gratification.

The fear and mistrust of big corporations means that the continued use of the piracy discourse is more likely to provoke and promote a deeply embedded historical fantasy – that of the pirate as the liberated individual who understandably rejects the constraints of a capitalist system. A system that seeks to make money by constraining individual freedom. 

In a 21st century narrative twist, the new media corporate giants are now being constructed as the bad guys. On a massive scale they disregard individual rights to privacy through the commercial exploitation of the 'big-data' derived from social networking, search and browsing behaviour. In these ways the struggle goes on to define precisley who is the protagonist-hero, and who is the antagonist-villain, in this storytelling constest of the cultural industries.  

These topics will be examined in more depth in the following chapter: Enclosing the Commons of the Mind.