In other words, the way the law stands, if you are caught downloading you may be liable for any unauthorized file on your computer. The procedure the record and motion picture companies follow is to send a request to settle letter as soon as they have evidence that you have downloaded one of the works in their catalogs. The letter will explain statutory damages and request several thousand dollars. If the addressee of the letter does not want to settle, they may be sued by the people sending the letter. This is what happened to Thomas.

Once a lawsuit has commenced, the addressee of the letter will likely be required to run a program on their computer. The program searches for media files which also may be evidence of further copyright infringement. If the lawsuit has started and the person with infringing files deletes them, they may be guilty or obstruction of justice, which may be worse than the damages for copyright infringement.

To answer your question, on the BitTorrent or other p2p networks, as soon as you have started downloading, you are also providing by being a "seed." "Download" and "provide" are becoming synonymous.

I agree that many creators create almost without regard for compensation, but that doesn't change the copyright-patent-trademark regime that's in place and being adapted for the so-called 'digital age'.

My question was a follow-up to the premise and not to the point. The point is that your insight is about the dynamic that exists when companies/copyright-holders have the right to sue but don't exercise it. Their adjustment may mean that the political impetus for legal reform will not be 'necessary' and so, consumers will remain on the hook based on an arguably antiquated legal framework–i.e. copyright-holders, by not pursuing action in cases that offend the public conscience may be helping preserve their rights.

But that stuff only applie to music and movies. Software companies would seem to have no choice but to sue the people who download, as there seem to be no software sites where you can view a commercial to play. However, even when the software companies receives a judgment against a downloader, I don't think they can really call it a "win".

In the end, I think the incentive to create will still exist if law suits against downloaders stopped. Perhaps the incentive for the big industries will shrink, but surely they would equalize with the incentives that anyone else has. The question is: is this what we want to happen? Certainly, in the digital world, the home user is able to create music, movies, and software with great production values. Look at MC Lars, Steal this Film, and Open Office, respectively, as examples of user created content. I think user generated is pretty good.

This makes me wonder whether it might ultimately be left to copyright holders (so often entertainment industry corporations) to make the determination on who to pursue out of a consuming public that will, essentially, all be guilty! It's almost a 'presumed guilty' scenario (maybe shooting fish in a barrel is a more apt analogy). Will companies lose their right to pursue infringing parties after they've adopted a policy that is, at best, ineffectively deterrent?