One of the things that’s a bit vexing about the debate over copyright and MP3 file trading is how polarized it is. You get the Valenti crowd claiming that IP is exactly like ordinary tangible property, and that downloading a song is precisely the same, morally speaking, as shoplifting a CD. (That’s never quite held up to scrutiny… at bare minimum, there’s the distinction that shoplifting leaves one fewer CD for other people.) Then there’s the IP anarchists, who see no moral problem with downloading as much as you like of whatever you like. That strikes me as a clear instance of free-riding: the music in question probably couldn’t have been produced if the companies selling it couldn’t rely on an expectation of revenue. (My own position has long been that copyright isn’t really like physical property, but that it does constitute a legitimate monopoly.) What’s odd is that these extreme positions are so dominant, despite the attention paid recently to the fair use doctrine—a doctrine whose core idea is that not all sorts of copying are created equal.

So, with IP skeptic Lawrence Lessig, I’m perfectly willing to say that if you jump on Kazaa, download a bunch of albums you would’ve otherwise bought to burn to CD and add to your collection, that’s sketchy. Maybe it’s not literally “stealing,” but it’s not kosher.

Still, there’s a whole range of other possibilities. I buy a CD and back it up to my hard drive. A year later, I accidentally sit on the disc and burn myself a new one instead of buying another. Or I rip a bunch of my CDs to a laptop or a computer at work, so I don’t have to carry them around with me. Here, it seems as though I’m merely making use of what I already own. Another possibility: I’ve heard a little about a bunch of bands that sound interesting, and download a few albums to listen to for a week or two while I decide if I want to buy any of them. (Assume I ultimately delete what I don’t buy.) Stealing? But the companies and artists and this case are increasing their sales as a result of this sort of behavior. From a legal perspective, I doubt it’d be possible to carve out an exemption for this, but from a moral one, it seems someone who does this needn’t feel any guiltier than someone who listens to a lot of radio.

A new wrinkle is provided by the possibilities opened up by Digital Rights Management, though. That is, I don’t feel bad now downloading an album to decide whether I want to buy it—it’s not like the record company would’ve gotten my $15 if I never had a chance to discover that I like it, after all. But what if robust DRM makes it possible for the same album to be made available for some nominal fee—50 cents or something—in a format that expires after 48 hours unless I purchase and “unlock” it? Is this kind of short-term listening a “fair use” of the kind the companies can’t limit, even if they can price for such uses? Or does the proffering of a reasonably priced means of “trying out” music transform what had previously been a fair use into a justly propertized one?