For at least the past three years, leading American fashion designers have lobbied for passage of copyright-like protection for the design aspects of their apparel creations. For at least as long, the recorded music industry has been engaged in an aggressive campaign to enforce its copyrights in recorded music against a number of technology-enabled and/or culturally sympathetic alleged infringers, including "twelve year-olds" and "grandmothers." Although the record labels already have protection under the copyright law while the fashion houses seek it, they have at least one thing in common: some portion of the piracy that they seek to eradicate is more valuable to them than they publicly let on. In their recent article The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Kal Raustiala and Chris Sprigman explore the "low-IP equilibrium" of the fashion design industry, as well as the unexpected value created by a low-protection regime.
One might ask whether there is anything wrong with chilling an unlawful activity such as large-scale copyright infringement. The article argues that there is something wrong with such a result, but that the owners of the copyright in the recordings either fail to appreciate the problem or fail to account for the problem in executing their enforcement strategy. Hip-hop mixtape DJs are engaged in productive infringement – infringing activity or improper appropriation that adds value to the infringed asset, rather than leading to losses for the copyright owner. Dealing with such infringement requires an approach different from typical recording industry tactics. This article argues that, in order to preserve and enhance the value of their own assets, the record labels should practice strategic forbearance.
Horace E. Anderson, "Criminal Minded?": Mixtape DJs, The Piracy Paradox, and Lessons for the Recording Industry, 76 Tenn. L. Rev. 111 (2009), http://digitalcommons.pace.edu/lawfaculty/484/.