Four types of copyright infringement

I recently finished reading the new book by Robert Levine, called Free Ride: How the Internet is Destroying the Culture Business and How the Culture Business can Fight Back. (I’m giving the whole subtitle so that it’s clear what kind of book this was, but I’m not really writing about the book here.)

Because of the title, I had hoped that the book would spend some time addressing the common conflation of copyright free riding with other kinds of infringement. One element of that conflation is combining “creative-” and “consumptive infringement”; those terms were coined in a paper by Christopher Jon Sprigman, and actually do appear on a single page of Levine’s book, with a reference to the excellent Copyhype post on the topic.

(Side note: I’m talking specifically about “infringement” in this post, but a similar phenomenon exists around the word “piracy”. William Patry is among those who have railed on the use of that word to mean anything other than “the massive, commercial, unauthorized reproduction of copyrighted works“, but Adrian Johns, in his dense but enjoyable history of piracy, points to the “free rider” definition of the word being used in the UK as early as the 1920s, to describe people who didn’t pay their broadcast receiving license fees. In any case, the general problem of imprecise usage of words that describe concepts related to the internet is pretty widespread.)

Splitting up infringement into creative and consumptive varieties is useful, but doesn’t go far enough. Any book with the ambitious scope of “Free Ride” needs to acknowledge that there are at least a handful of different behavioral patterns that include “infringement” in some form, but which have completely distinct motivations and explanations. I propose the following list of four. It’s not totally exhaustive, but to my mind is a good start.

  • Free riders represent most “leeching” users of a peer-to-peer network, or downloaders on the big file-hosting sites. These are the individuals that the RIAA and the MPAA have spent the years after the Napster and Grokster cases suing. The four different types of “piracy” that Lawrence Lessig describes in chapter 5 of Free Culture are performed mostly by people in this group.
  • Commercial pirates engage in behavior that is pretty widely rejected, and are often the rhetorical target of media groups, and the reason for penalties that are overly harsh and ridiculous when applied outside of this group. Theater “camming” laws were aimed at commercial pirates, but caught 19-year-old Jhannet Sejas. The DeCSS trial in Norway was purported to be about commercial piracy, but concerned decryption technology that isn’t required for commercial duplication.
  • The Scene is one of the more enigmatic groups, and I’ll admit that their motivation is far less straightforward than “getting free music” or “making money”. Members of the Scene (or the Warez Scene) belong to different groups that compete to release popular content as quickly and in as high quality as possible. These same kinds of individuals spend long hours and sometimes serious money creating complete databases of content and coding private trackers, and often describe their work as being driven by a commitment to free speech or to sharing art.
  • Remix culture is the only strictly “creative infringement” category on this list. Individuals making transformative uses of copyrighted works have stayed out of the media companies legal sights, for the most part, but artists like Girl Talk have still become the poster children for this kind of “illegal art”. The occasional lawsuits around these uses have carried potential damages that, driven up by laws targeting commercial pirates, are so ruinously high that it can make sense to settle even if you believe you’re in the legal clear.

As I’ve said, this list isn’t exhaustive, but I hope that I’ve demonstrated why it’s necessary, say, to draw a distinction between the penalties assigned to commercial pirates and free riders, or to consider the motivations of remixers separately from those of The Scene. If you have or want more information about these categories, sound off in the comments.

Published by Parker Higgins

I'm the Director of Special Projects at the Freedom of the Press Foundation, and previously led copyright activism at the Electronic Frontier Foundation. I live and work in Brooklyn, New York. more »

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  1. Interesting stuff. I agree with you that it’s important to separate infringement into categories. I do _not_ think any kind of “creative” infringement represents the same kind of wrong to creators.

    However, it’s important to note that all the file-sharers sued by the RIAA were _initially_ sued for uploading (technically unauthorized distribution). In some cases, the RIAA also sued them – foolishly, in my opinion – for violating the reproduction right.

    It’s also important to note, in terms of the Scene, that many commercial-scale infringers who say they are in it for the “lulz,” as the kids say, are actually building illegal businesses. To cite the most famous example, the Pirate Bay represented itself as a cause, but the emails they sent to each other make it very clear that they ran it as a business – getting investment, finding customers (for ads), hiring a salesman (for ads), and taking elaborate steps to hide their income from taxes. In addition, one of them already had a criminal record for financial fraud.

    In any case, I find this very interesting. Having finished the book, I’m actually sorry I didn’t differentiate between commercial and consumptive infringement, since I think it’s a useful way to think about the issue.

  2. Hey Rob,

    Thanks so much for reading and commenting, and I hope this didn’t feel underhanded. I want to write more about the book, because I found it very interesting, but I’m holding off until we’ve met.

    All the points you make are good ones. I’ll totally cede the fact that the RIAA targets were uploaders, but to me it’s telling that they weren’t (apparently) targeting the seedboxers or release groups. So while there’s a technical reason they chose to sue for uploading rather than downloading, I think it’s fair to think of those people being sued as, primarily, free riders.

    I also agree that some of the apparent Scenesters are actually commercial pirates — you don’t need to be selling DVDs on Canal to fall under that heading, to be sure. The Pirate Bay is a good example of a group that are probably more commercial than they let on, but it seems that there _are_ genuinely lulzy or idealist groups, that aren’t obviously trying to make money in any way I can tell. (They can’t even really use their volunteer work on a resume, for indirect financial gain.) I don’t have numbers on this, so it may well be that these types are a vanishingly small minority.

    You _did_ mention a distinction between creative and consumptive infringement — it’s on page 93 :). I do think it merits more consideration, but in terms of a practical normative discussion, I don’t blame you for not getting into it. I don’t envy any legislator or developer who tries to rewrite laws or code to distinguish effectively between those types of infringement.

  3. Not at all. I wish all the criticism I got was thoughtful. It’s important to categorize this stuff. I think both sides like to confuse these issues. If you listen to the riaa, it can seem like there’s a wave of immorality sweeping the country. Listen to lessgig and piracy comes to seem creative. I think both of these are wrong. More importantly, they are not useful ways to see a complex issue.

  4. Hey Parker,

    I’m a little late in the game, but I appreciate you putting together this post detailing more about the “types” of copyright infringement. I was looking for the sources you cited and grateful you put them all in one place! I plan on researching and looking more into these levels.

    I agree that it would be hard to codify these levels given that sometimes there isn’t a clear-cut category an into which an infringement falls. I started a great debate in my Entertainment Law class when I brought up the ridiculously high statutory award in the Jammie Thomas-Rasset case.

    Let’s see how this goes from here!

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