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 »