David A. Rice
Digital electronic information, computer program, and communication technologies rapidly and widely transformed all sectors, nooks and crannies of society and private and public resource allocations over the last two decades. Their advent generated new demands on human conceptualization, thought, expression, and dialogue about the new phenomena. Universal discourse about the technologies, features, uses, and their intended or unintended consequences begged linguistic expression in ways that evoked familiar concepts. “Cyberspace” and “cyberlaw” became metaphors prominent in contemporary “information society” and “information law” discourse. Judges and lawmakers not trained or versed in underlying technologies and how their use and dissemination effects change often have turned or alluded to the new common discourse language when dealing with new-appearing as well as genuinely new “information age” issues in their decision and policy making roles.
Recently, several academic commentators have turned their attention to the meaning(s), utility, and (un)intended consequences of “cyberspace” and “cyberlaw” Some have stressed the need to identify and redress consequences not originally anticipated or intended. Other writers have reflected upon the modern popularization of “intellectual property,” “intellectual property rights” or “IPRs” and the derivative “intellectual property law” as substitutes for focusing on the subsumed but legally distinct particulars and purposes of patent, copyright, trademark and trade secret laws. A commonly expressed concern is that use of these terms underlies judicial and legislative changes in the balance that each strikes between private and public, or holder and user, interests. Similarly, loose usage of terms such as “bio-piracy” has elicited critical comment.
Unfortunately, little serious attention has been directed toward the proclamation and popularization of ”piracy,” “theft,” steal” and “counterfeit” as metaphors for what is but copyright infringement. The paper will identity and discuss how these terms which strongly connote criminal behavior and intent have entered into legal policy making and adjudication processes through propitiating use by digital format product producers, trade organizations, important government reports, public announcement of private and law enforcement agency initiation of legal actions, and the press. Mounting evidence indicates that such casual and pejorative usage in the commencement and prosecution of private or government-initiated legal proceedings, including use of the terms in forensic expert reports, often achieves its intended outcome-influencing effects. These rarely contested or judicially checked uses interject conclusions that color perception in a way that erects barriers to effective defense. Similar substantial evidence exists concerning the introduction, consideration, and enactment of new legislation. In both settings, this misuse of metaphor to shape rather than describe reality operates to legitimize and further the often criticized expansion of digital work copyright and other legal protections. Specifically, the concern is with the tendency to equate digital works and content with real and tangible personal property which leads, in turn, to using terms such as “theft,” “steal,” piracy” and “counterfeit” to promote and justify reshaping of statutory limited exclusionary rights in intangible personal property by analogies drawn to stronger enclosure/exclusion real property and possessory personal property ownership rights.
The paper will address this phenomenon and its consequences in especially the adjudication context through identification and consideration of illustrative public announcements of recent private and public copyright infringement actions and reported U.S. federal court decisions. In addition, it will note acceptance of the usages by the press and Wikipedia, and even the Oxford English Dictionary. The origins of the paper are the author’s notice that “counterfeit” is used with increasing frequency in judicial opinions involving copyright infringement facts, claims, and statutory remedies although U.S. “intellectual property”statutes speak of counterfeiting liability only in trademark law. This overlay on widespread use of “piracy” in the same manner spurred more extensive research into the phenomenon and reflection on the power of inapt and over broad metaphor misuse to shape, not describe, the meaning and application of law.
The paper topic, in summary, addresses metaphor misuse to shape or influence perception of reality rather than to describe it, a matter of jurisprudential and therefore social importance and ethical significance given that metaphor and analogy are prominent devices in U.S. and other common law judicial reasoning when dealing with new-seeming or new legal facts and issues. The author’s intention is to present and publish a first paper on the topic and, with aid of participants’ commentary and the author’s further research and reflection, eventually publish a more fully developed journal article . . .