By , September 22, 2010.

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.


1 Noted copyright scholar William Patry defines “piracy” as the “massive, commercial, unauthorized reproduction of copyrighted works.”
2 The 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.


  1. ‘consumptive’ is a loaded term, implying the consumption/diminution of a resource.

    It is not for the maker to be concerned with the value someone obtains from what they have made, but that they exchange their labour for something they consider of equal value (as similarly aspired to by whoever they make that exchange with).

    Why not simply distinguish between the communication of an intellectual work and the cultural engagement with a work? One preserves its integrity, the other quotes, abridges, translates, transforms or improves it (among other possible engagements).

    If you have been granted a monopoly over the communication of an intellectual work, then each unauthorised communication as each authorised communication diminishes the value of that monopoly in some immeasurable way – until the market is saturated (no longer economically viable). It is only this monopolised market that can be considered to be consumed. And yes, piracy is the natural dissolution of mercantile privileges such as monopolies.

    The era in which a monopoly in copies was achievable has now passed. It is a bit late to consider restoring the public’s liberty to engage with a published work (their liberty to communicate it remaining notionally suspended).

    Piracy is not social delinquency, but nature raising the tide of mankind’s cultural liberty. It is natural and vital for Homo Sapiens to communicate, irrespective of any facile artifice of idea/expression dichotomy, and irrespective of any crown granted privileges to the contrary.

    • *sigh* You know, I had a big post here, but…

      For one thing, you aren’t engaging the post. You’re just copy-pasting a generic “COPRYIGHT IS BAD!!!!” post.

      For another, you agree with the guy. You and he both feel that the law makes no difference between “contributory” (criminal) infringement, and “creative” infringement. You and he both feel that the law should make such a difference beyond the simplistic, academically- and politically-focused “fair use” test. Why aren’t you admitting that you agree?

      • DensityDuck, if you are interested in preserving the monopoly of copyright you cannot afford to admit any difference between true copies and derivative works (as was soon appreciated).

        The solution is not to attempt an impossible duality, but to abolish the grant of monopoly – hence why I must note its injustice.

  2. “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.”

    I don’t think its fair to say that at all. My (admittedly anecdotal) experience suggests just the opposite. Do you have any links, studies or proof to back up this assertion? Most copyright cases that make it to the courts seem to deal with derivative works, idea/expression issues, parody vs. satire, etc. Certainly not “consumptive” infringement as you term it. At the very least, you need to back up that assertion with some outside sources. Certainly most legal threats and cease & desist letters revolve around “creative infringement” issues, would you not agree?

    • You would have to go through the actual dockets to find specifics, something I’m not aware anyone has done. But we can get an idea.

      Barton Beebe’s Empirical Study of US Fair Use Opinions (156 U Penn L Rev 549 (2008)) provide some numbers. He found 306 published opinions that made substantial use of the 4-factor test between 1978 and 2005.

      A Google Scholar search, in contrast, reveals 1,430 results for copyright “fair use”, limited to federal court opinions between 1978 and 2005. Obviously, Google is returning all cases where fair use is mentioned even in passing, not just opinions where it is substantially discussed, and a quick check reveals there is some number of duplicates in the results, but this number should provide some basis of comparison.

      A Scholar search with the same limitations for copyright “substantial similarity” provides 1,080 results.

      Copyright idea expression – 2,010.

      Copyright parody – 353.

      Copyright satire – 150.

      Copyright “derivative work” – 698.

      Obviously these numbers don’t mean much, I’m only providing them for context. There are duplicates, there’s overlap, the results include appellate and Supreme Court cases as well as district court cases; they don’t include unpublished opinions.

      By way of comparison, take a look at the latest annual report of the Director of the Judicial Business of the US Courts to see how many copyright cases are filed each year. There were 5,796 copyright cases filed in the US District Courts in 2005 alone. Very roughly speaking, I’d put the number of civil copyright infringement cases from 1978-2005 at around 30-50,000.

      Admittedly, I’m guessing that because of the routine nature of a consumptive infringement case, it is less likely to be published. And, due to the nature of the doctrines involved in creative infringement cases, I’m guessing there are not a significantly higher number of total opinions compared to just published ones. Based on all of the above, I stand by my statement that consumptive infringement cases occupy the vast majority of court dockets.

      • Sorry Terry, but I find the method you use for your conclusion to be completely off base, to the point of being meaningless.

        First off, if I’m understanding your argument correctly, you assume that because most copyright lawsuits don’t result in published cases, we can therefore deduce that they are likely “routine” in nature and therefore “consumptive” in nature (as opposed to having “creative infringement” arguments within them). Apologies, but I find that reasoning to be entirely fallacious at its very core.

        As many IP litigators will tell you, most of the tens-of-thousands of copyright lawsuits don’t result in an opinion because they are “routine”, but rather because they settle before trial. The only thing that is “routine” here is the scandalous practice of filing lawsuits against defendants with strong fair use claims, then squeezing settlement amounts out of them before trial since most fair use practitioners can not afford the costs associated with trial. The key is not the amount of lawsuits filed, but rather the amount of lawsuits litigated to a full trial.

        Secondly, using the phrase “substantial similarity” in a Google search is meaningless in terms of providing any usable information in this context since many “fair use” cases use this phrase. Is the phrase “substantial similarity” supposed to be indicative of “consumptive infringement” or “creative infringement”? You don’t seem to make that clear, but what IS clear is that most court opinions bastardize the phrase within the context of “creative infringement” cases.

        For instance, the recent Salinger v. Colting case pitted the J.D. Salinger estate against the writer of an unauthorized sequel to “Catcher In The Rye”. The new work used none of the actual phrasing or copy from the original “Catcher In the Rye”, but rather, only used previously developed characters in completely new contexts. And yet, the court in that case stated “[T]he Court found that Plaintiff has shown that there is substantial similarity between ‘Catcher’ and ’60 Years’, as well as between the character Holden Caulfield from ‘Catcher’ and the character Mr. C from ’60 Years’, such that it was an unauthorized infringement of Plaintiff’s copyright.”

        [Link here, quote found on pg. 2 of the decision:

        When you have court opinions using terms like “substantial similarity” so sloppily and counter-intuitively, it becomes quite clear that using the phrase as a Google search term to prove your point is meaningless. There is no way to deduce the meaning of the terms used without studying the context of each individual case – something you yourself admit is not practically possible.

        Based on all of the above, I stand by my statement that your argument is completely without foundation in this instance. But I’m happy to let readers consider the exchange and decide for themselves.

        • So your argument is that there are thousands and thousands of potential lawsuits and therefore you’re right?

          Sounds like those industry lawyers talking about thousands and thousands of potential profit dollars…

  3. Pingback: Artistic Expression, the First Amendment, and Copyright | Copyhype

  4. Pingback: Is Copyright Infringement Theft? Part 2 | Copyhype

  5. Pingback: Should Copyright be Treated Like Property? | Copyhype

  6. Pingback: EMI Records v. UPC | Copyhype