Copyhype

I’d like to take a step back from discussions about copyright specifics to make a general observation. We can distinguish between two types of copyright infringement – let’s call them “consumptive” infringement and “creative” infringement.

“Consumptive” infringement includes what is generally called “piracy.” ¹Noted copyright scholar William Patry defines “piracy” as the “massive, commercial, unauthorized reproduction of copyrighted works.” This is the type of file-sharing that has flourished on the internet, whether we’re talking about music, movies, books, software, images, or any other copyrighted subject matter. Consumptive infringement involves the reproduction and distribution through unauthorized channels of what is generally offered through legitimate ones.

“Creative” infringement, by contrast, involves the use of existing works, without permission, to create new works. It includes transformative uses, derivative works, and works which may be protected by fair use. This category also includes what has been described in academic literature as “remixes” or “mashups.”

I define consumptive infringement in such a way that it is de facto infringing at law. A work has been reproduced, in its entirety, for the sole purpose of substituting a legal use of the work. Creative infringement, however, is a grey area, and can only be declared an infringement by a court. With creative infringement, the line between infringement and non-infringement is necessarily fuzzy and undefined. Inherent in this category is the recognition that all creative works, to some extent, borrow from existing works. Some, like Men at Work’s Down Under, may be determined to have borrowed in a legally infringing manner, while others, like 2 Live Crew’s Pretty Woman, may be determined to have borrowed in a legally acceptable manner.

The doctrines used to determine whether creative infringement exist occupy close to 99% of copyright casebooks and a solid proportion of academic literature. Substantial similarity, fair use, the idea-expression continuum, de minimis – all these have been developed and employed by courts to sort perfectly acceptable uses of existing copyrighted works from those that cross the line into infringement.

I’m certainly not the first to note a distinction between these two types of infringement; I’m not even the first to make use of the term “consumptive infringement.” In Copyright and the Rule of Reason, author and law professor Christopher Sprigman defines “consumptive infringement” as those “forms of infringement involving the reproduction and distribution of copies that are either exact or near enough so that they are almost certain to compete with the original work for patronage.” He goes on to say that this “category of consumptive infringement will apply to a large percentage of copyright cases that plaintiffs will wish to bring. Most copyright violations involve the making and distribution of exact or near-exact copies. Virtually all of the infringement via peer-to-peer networks falls into this category.”

Why bother with this distinction?

While Sprigman makes the distinction between “consumptive” infringement and other types of infringement to propose a new legal standard, my purpose here is to merely note that a distinction exists to aid in our discussion of copyright. As noted above, cases of creative infringement occupy the vast majority of copyright discussion. When is a use fair? Where is the line between an idea and an expression? Consumptive infringement, however, is pretty cut and dry. It competes precisely with the rights that copyright law was designed to protect. Bootlegs and torrents act as displacements for the consumptive offerings of content creators.

The distinction I make is not often noted but apparent in practice. The RIAA lawsuits targeted those who shared those songs that record labels offer for sale. Criminal copyright infringement charges can be brought for any type of infringement, but as far as I can determine, the only cases which have historically been brought have been against those who have engaged in widespread consumptive infringement. And while you can find a flourishing mashup scene online, not a single lawsuit has been brought against a mashup artist, even a commercially successful one like Girl Talk. ²The New York Times notes the lack of legal action against mashup artist Girl Talk. A number of sites offering Danger Mouse’s Grey Album, one of the most famous mashup albums, received cease and desist letters from EMI, but the label never pursued further action. I’ve been able to find only one other report of a cease and desist sent to a mashup artist.

It should not be surprising that the grey areas of a law receive the most analysis while the black and white cases generate the most legal action. Copyright law is no exception. But here’s the problem: the entirety of copyright law has become somewhat of a boogeyman. A good portion of the online public has grown increasingly skeptical of content industries.

As a result, all aspects of copyright law have been placed under a microscope. Any and all deficiencies in court’s applications of substantial similarity, fair use, or the idea expression continuum have been duly noted. The shortcomings of these problems are transposed on discussions involving efforts to manage piracy.

It’s as if content creators are not justified in addressing piracy as long as all these other problems with copyright law remain.

What we need to remember is that any substantive problems with copyright law are independent of the problems of consumptive infringement. I don’t think I’m going too far out on a limb to say that most creators, whether large or small, are primarily concerned about the effects of consumptive infringement.

It’s also fair to say that while creative infringement occupies the vast majority of casebooks and academic literature, consumptive infringement occupies the vast majority of court dockets. Creators of all stripes are rightfully concerned about the effects consumptive infringement has on their livelihood, and shouldn’t have to become apologists for any perceived problems involving creative infringement.

Bottom line, I think it’s important to recognize this distinction between consumptive and creative infringement. Rational discussion of copyright policy is aided by separating the two. I’ve remained deliberately broad and general in this article; it’s my expectation to use this as a launching pad for more detailed topics in the future.