Glad you brought up these points. It is especially critical for people to remember that “commercial” use is not dispositive on the question of fair use — just because you are not selling something does not make the use “fair.”

In terms of your another of your points, however, I wonder if it is not more complicated. Recording a television episode on a VCR or TiVo is generally considered fair use, and that does encompass the entire work. So “creativity” and transformation are not dispositive either, and merely because the whole of a song is downloaded for listening — the same purpose as most purchasers — does not automatically void the fair use argument.

I do think there is a core intuition by many, whatever the state of the law is, that non-commercial, personal use ought to generally be considered more “fair” than commercial use. Perhaps this comes from a sense of personal autonomy and freedom, or perhaps from selfishness, but I think it’s pretty common. Of course, common intuition this does not determine the legal position, but it informs and shapes it, I think.

Still, I doubt with the state of the law as it is that filesharing will be deemed fair use by the courts for similar reasons to those you have articulated.

Nonetheless, I find the idea of file sharing as fair use a provocative one: what would be the impact on business and behaviour if even limited file sharing were considered fair use? What would be the impact? Would there actually be a net benefit to society? (IP is supposed to be a balance between creation and dissemination, after all.)

Thanks for your comment!

Kris