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Derek — I think wide-open, unhindered file sharing is a great thing. Any music fan who used Napster in 2000 will immediately recognize the viceral truth of this statement. And I think we need to emphasize the many virtues of fan-driven, wide-open file sharing. We ought not abandon the fans and join the chorus telling them to hang their heads in shame for building the greatest music library in the history of the world.

The problem, of course, was the lack of compensation to artists and owners. On this point, I agree with you — file-sharing without compensation is not realistically sustainable, nor good in the long run for those who care about music or the Internet. But recognizing that, and working on a solution for that problem, is not the same thing as saying that file-sharing is wrong. All the instincts that made file sharing so successful are exactly the right instincts for a vibrant creative, cultural and innovation environement.

Hi Derek, I’m grateful for your thinking on this issue and might add: whether Internet file-sharing is ‘infringing’. There are at least three notable exceptions:

1) If by ‘infringing’ we mean ‘economic harm to the market’, then Internet file-sharing may sometimes have a neutral effect on the market for any particular copyright — or may be pro-competitive by increasing that owner’s profit. There may be economic harm to some copyright owners, but not to others. There may also be harm from sharing by some consumers, who share instead of buy, but not from sharing by other consumers who lack anyway the disposable income to buy.

2) Even assuming that Internet file-sharing is proven to have some quantifiable harm on the market at large, still, ‘economic harm’ includes a weighing of the transaction costs that would be required to avoid that harm. Here, the transaction costs required to sort through millions of copyrights and consumers must be great. Should the transaction costs in fact outweigh any avoidable harm, then such harm ought be deemed a constitutionally protected ‘fair use’ and not ‘infringing’.

3) And not the least, an absolute defense to infringement is misuse by the copyright owner, which may void the owner’s claim to the copyright for cause that ranges from antitrust violations to abuse of process.

In a little known pro se case worth watching in New York, Deep v. RIAA, for example, the owners of copyrights to the most popular music and movies are alleged to have engaged in criminal obstruction of justice and willful violations of antitrust law. (The complaint is available at http://www.aimster.org.)

Certainly, I do agree, and we may all agree, even passionately, with your and Professor Lessig’s basic tenet — copyright infringement is wrong where proven, and may well be a crime. And let us further agree with equal passion that any alleged act of infringement – and so the alleged infringer – is innocent until proven guilty.

Thanks, Derek.