From time to time, I will "evaluate" expensive software before buying it -- if I don't like it, I delete it. If I do like it, I buy it. Is that infringement? Yep. Do I think the laws should be changed to allow it? Nope.

Apparently, you are one of those people who think that jaywalking and murder are morally equivalent. You are, apparently, also one of those people who think that all information should be free, copyright protection is an expression of facism, and artists should create solely for the joy of creation without regard for compensation.

Fortunately, most people have a more sophisticated view of law and society. I hope you don't run for Congress.

Why? What is the significance of making such a distinction?

I jaywalk all the time (and I'll bet you do, too). Are jaywalking laws outdated?

The law provides a civil remedy for civil wrongs. Copyright infringement is a civil wrong. There is an old legal maxim: for every right there is a remedy. That does not mean, however, that every right demands that the remedy be exercised whenever there is a violation. Moreover, the EXCLUSIVE remedy at law for civil wrongs are monetary damages.

Returning to my computer game client as an example, they are not going to search out every single person who installed a pirated copy of their game to try it out before buying it. Why would they? Do you really think they're interested in spending $250,000 to recover a statutory maximum of $150,000 from someone who is a customer? Is there any point in doing so? Of course, they will aggressively pursue a point-to-point network that distributes their game and deprives them of 10,000 or 100,000 or 1,000,000 gross sales. Why shouldn't they?

The law is rarely black and white, and enforcement of civil law is not mandatory. Most people are capable of recognizing the ethical concept behind not taking someone else's property, and all businesses recognize the reality of the cost of enforcement.

If you've ever read what I've had to say about using commercial CDs as soundtracks for wedding videos, you'll note that, after I explained the state of the law, I said that the videographer will have to determine for his or herself the extent to which he or she is risk-averse. Knowing the level of risk, and the level of individual risk tolerance, allows the videographer to decide whether or not to go ahead with using the bride's favorite CD for a soundtrack. I don't advocate doing it, and I don't advocate not doing it. It is purely a business decision on the part of the videographer. I do, however, advocate making business decisions on an informed basis, which means understanding the law, how it is applied and how it is enforced.

Richard Posner wrote an interesting treatise called, "Law and Economics" in which he described all laws as simple allocations of economic rights. As an example, under Posner's theory, any one who wants to can have the right to park their car anywhere at anytime -- hydrant, bus stop, no-parking zone, expired meter, it doesn't matter. They just have to be willing to pay for the allocation of the right to them, specifically through the imposition of various fines that they must pay when they are caught. The economic value of that right is equal to the penalty imposed that, in turn, reflects society's estimate of the value of the right, e.g. society agrees that $10,000,000 is an over-valuation of the right to park at an expired meter, whereas $35 is just about right for doing so here in San Francisco. Copyright law is, of course, susceptible to a similar analysis.

Now, I don't agree with Posner that all civil law can be reduced to an economic valuation of a specific right. However, the fact that a bunch of high school and college students don't want to pay for the music they listen to and think artists should create music for free doesn't mean that societal value of protected expression should be adjusted down to zero. What it does mean, though, is that the value of a particular distribution medium, i.e. the physical CD, is no longer as great in light of the simpler and less expensive alternative of internet distribution. That is a true change in valuation and, not surprisingly, the music producers are changing their business model to reflect it -- iTunes being a prime example. No change in the law was necessary just because a particular rights allocation valuation shifted. What you are advocating is every bit as impractical AND dangerous as the content distributors who got the DMCA rammed through.

THAT's why I don't think the law, as a whole, is out-moded.