Jonathan Zittrain on Use of Copyrighted Work

Jonathan Zittrain is attributed by the NYT as saying that:

there is no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material.

Subpoenas Sent to File-Sharers Prompt Anger and Remorse (July 28, 2003)

Mr. Zittrain is drawing two distinctions here. The first is between use of the copyright and use of the work. A competitor uses the copyright, whereas a consumer simply uses the work. The second is that historically, copyright is a tool used against businesses i.e. competitors, i.e. the person selling pirated copies on the street, and not against consumers.

A Note on Fair Use
To further validate these points we can look at the fair use doctrine:

As originally promulgated, the fair use doctrine was a fair "competitive" use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication.

Therefore, the doctrine applied only to competitors, not consumers. [cite] What this means:

1. If consumers don't use the copyright, then there can be no copyright infringement.
2. If copyright law hasn't been enforced against consumers for centuries, then can it be fairly be applied against them now?

Originally: Should consumers be treated the same as competitors?