The lawsuit against Kazaa was equally dubious however. Two wrongs don't make a right, but the lawsuit against Kazaa is the same as filing suit against U.S. Post Office or FedEx service because it doesn't explicitly prevent people from mailing xeroxed copies of copyrighted text. The chain of events is really similar.

1) I make a copy of a copyrighted text using a photocopier.
2) I stick it in an envelope and mail it to somebody.

The Post Office acts as a carrier for an object which is clearly in violation of copyright but I still don't think that the Post Office should be sued.

The only difference is that the above example is a 1 to 1 distribution method which is relatively inefficient.

I can use a mall as a delivery system as well though, and do it for free.

1) Look for a free-after-rebate deal on blank CDs.
2) Make 100 copies of a copyrighted product
3) Stick the stack of CDs in the mall with a sign saying "take me"

Should the mall be sued for not preventing this?

I sympathize with copyright holders but also believe that you can't assign damages to copyright violation in the manner that they have been. If I steal a physical book or CD from a store than there is a tangible loss. It isn't the $19.95 printed on the sleeve, but its the cost prior to markup to the store. If I steal a box of CDs off of a truck prior to reaching the store then the loss model is different as well. All that's lost is the cost of the physical materials that make up the CD. Maybe 144 jewel cases, 144 inserts, 144 pieces of packaging and the 144 actual CDs.

What the media companies are doing is first assuming that they're out the actual $19.95 for each person that downloads a song, even though physically nothing has been stolen. I won't argue that there aren't some damages but only to the extent that somebody decided to download the song and not buy the CD.

Sustrate makes a very good argument.