Kevin Heller makes an interesting argument regarding filesharing that parallels an argument made by Jessica Litman in her book Digital Copyright (P2P File Sharing is Non-Competitive Use of the Work). The argument is that there is a distinction between normal use and competitive use, at least before Congress screwed up copyright law in 1909.

A normal use is the use someone who has acquired a copy of a copyrighted work normally makes of it. Reading a book you got from the library is a "normal use." Watching a DVD movie is a normal use. Ripping a CD so you can play it on your iPod is a normal use. Normal uses are never copyright infringements. This isn't a fair use defense because normal use isn't a copyright infringement in the first place.

A competitive use is a use that "competes" with the rights of a copyright holder. For example, excerpting parts of a book and then selling the excerpts is a competitive use. Competitive uses are either infringement or protected by fair use.

So far, I agree completely. I think we should return to this doctrine. However, where I disagree is in how to distinguish the two types of use. Heller distinguishes the types of use by the characteristics of the user, for the most part. I distinguish them on the type of act. Heller says "consumers are not competitors." I say, in today's world, consumers, competitors, it depends on how they act, not who they are. Sitting in my den, I can manufacturer more albums than an independent label 30 years ago. I'm a publisher, if I want to be.

Heller says it is okay to be a publisher as long as I'm doing it non-commercially. I don't believe that is a sufficient distinction. Soon, everyone will have massive amounts of broadband available in the home and terabytes of storage space. Everyone will be able to "non-commercially" distribute more music than the labels could in their heydays. Copyright as we know it (or should understand it pre-1909) simply won't work under those conditions.

Heller says it is the commercial P2P file sharing networks that are the competitors. But if non-commercial distribution is legal, even if the commercial networks went away would that make any difference? If anything there would be more efficient and effective filesharing than ever.

This is why I don't agree with Heller's conclusion. Heller wants the RIAA to promise not to sue consumers if a narrowly tailored (targeting only commercial P2P networks) INDUCE Act is passed. First, you couldn't have such a promise because you couldn't get every copyright holder to agree. The enacting legislation would have to waive liability by statute. Second, and more importantly, even if the commercial systems went away you'd have just as much filesharing with the non-commercial systems. Indeed, with the liability waiver for users, technical development would be rapid and the copynorms would shift, since filesharing would have been legalized.