RIAA's Tax Dollar Piracy

"Pirating" copyrighted works is not a criminal matter.

The Tennessean brings us this interesting news item:

State lawmakers in country music’s capital have passed a groundbreaking measure that would make it a crime to use a friend’s login — even with permission — to listen to songs or watch movies from services such as Netflix and Rhapsody... The legislation was aimed at hackers and thieves who sell passwords in bulk, but its sponsors acknowledge it could be employed against people who use a friend’s or relative’s subscription.

The topic of copyright protections and enforcement is one on which the Scragged community is deeply divided - so we'll set aside the underlying principles, or the law as it stands.  What this particular new law is doing is even more interesting: far from defending a fundamental point of justice, it is providing unearned corporate welfare and special privileges, using tax dollars to provide private benefits which should be paid for by the parties involved.

Crimes and Punishment

What happens when Wal-Mart sees somebody shoplifting?  They call the police.  The police come and arrest the thief, who is presumably prosecuted, convicted, and fined or imprisoned.  All this is paid for at public expense: your tax dollars pay the cop, the prosecutor, the judge, and the prison guard, then later on the parole officer.

Which is quite expensive to the public.  In fact, after years of police complaints, Wal-Mart changed its policy to only have shoplifters arrested if they're making off with more than $25 in stolen goods; the rest they just glare at threateningly.  Still, virtually every time anyone is prosecuted, the costs are overwhelmingly greater than the value of the merchandise involved.

Why do we, as a society, provide this subsidy to Wal-Mart?  Because it's much better than the alternative.

In order to operate a functional business, you have to have some assurance of getting paid for your merchandise.  If Wal-Mart couldn't count on the police and courts, it would have to do something else which we probably wouldn't like.  Drug dealers, who cannot call the police for help when they're robbed, provide a cautionary example of how private enterprises defend themselves when they have to do it entirely on their own.

However, both businesses and individuals do have the right to defend themselves until the police get there, however long that might be.  During the L.A. riots, several Korean store owners famously spent the night on the rooftops of their buildings armed with shotguns and flashlights.  They defended their property until the National Guard showed up to do it for them the next day, at which point they peaceably packed up and went home.

The battle between "castle doctrine" advocates, who grant homeowners broad rights to defend against attacks on their property, and gun-control believers who expect cops to always arrive on time, is ongoing.  As the bumper sticker puts it, "When seconds count, the police are only minutes away."

Regardless of cost, knowing that the police will show up fairly promptly cuts down on the violence and unpredictable mayhem in society.  Certain categories of crime, particularly property and violent crimes, are so disruptive to the course of life and business that we need to present a publicly-funded united front against them.

Civil Action: Lawsuits, Not Crimes

There is another, completely different arena of the law: that of the civil suit.  Just as a functioning economy requires public order and police to defend us against robbers and murders, it also needs courts to decide commercial disputes.  Companies of any size employ teams of lawyers to review contracts, negotiate settlements, and if necessary, take violators to court.

Civil suits are entirely different from criminal trials.  For one thing, they are almost entirely a matter of money.  It's hard to put a price on not being murdered or having your home violated by burglars; it's quite straightforward to place a value on breaking contract terms or violating an agreement of some kind.

The time scale involved is also quite different.  With theft and violent crimes, seconds count; with commercial disputes, the time involved matters only in the sense of the money it costs.

As a result, civil and contract disputes have not had the government involved in direct enforcement or prosecution.  The injured party is expected to bring suit and provide his own lawyers, and the defendant provides his own lawyer too.  Taxpayers contribute the judge and jury, but don't take sides while the case is under way.

Only once a decision has been handed down might the police get involved in enforcing it.  For instance, when OJ Simpson was found civilly liable for the death of his ex-wife and her boyfriend Ronald Goldman, he was ordered to sell possessions to pay the judgement, including his Heisman Trophy.  He sold the trophy to a collector and forked over the proceeds, but if he hadn't, the Goldmans would have asked the sheriff to take it from him and the court would have sold it on their behalf.

Not only does this approach save taxpayers money, it allows for more just decisions.  The parties to the dispute have the opportunity to negotiate and may reach a fair settlement that works for both of them without needing to go through a full trial.

Criminal cases don't allow this, and shouldn't: Muslim sharia law permits accused murderers to negotiate with the families of their victims, which allows rich murderers to buy their way out of punishment for their crimes.  That might have been nice for OJ, but the rest of us find the custom of "blood money" to be nauseating.

Have the government enforce commercial disputes the way it enforces criminal laws would put the police into every transaction or financial decision you make.  We wrote about the terrible harm done by attempting to use criminal law to enforce MySpace's EULA in the sad case of a woman whose online harassment was said to have driven her daughter's class rival to suicide; this Tennessee law effectively does the same thing by criminalizing certain uses of computer log-ins.

Thieves in Places High and Low

An argument can be made that "pirating" music or movies is theft and should be sanctioned.  RIAA and the MPAA are famous for making life miserable for anyone who falls into their clutches, from grandmothers to kindergartners: poor Jammie Thomas was fined $2 million for sharing 24 songs.

She won't pay, of course; she hasn't got $2 million, and if she did, she'd have already paid it out in lawyer's fees.  No more does the ordinary Wal-Mart shoplifter pay anything to Wal-Mart for the trouble they caused; Wal-Mart is lucky to get the shoplifted TV or whatever back in one piece after it's been used as evidence.

No matter how you cut it, unauthorized copying of media is not a criminal act and shouldn't be.  It's a copyright violation; it's a breach of license agreement, if you believe that EULAs triggered when you open the package are enforceable.  Nobody's privacy, property, or person have been invaded or removed; data copying is inherently a completely different class of act, just as we recognize that jaywalking, while a misdemeanor, is not at all the same thing as armed robbery or murder.

The only effect of this new law is to transfer the costs of enforcement from RIAA and the MPAA, where they rightfully belong, to the taxpayer, who if polls are anything to go by doesn't even think copyright violation is a crime at all.  That's legalized theft and corporate welfare, no more and no less.

Time for a strange-bedfellows joint assault by smaller-government Tea Party types and Information-Wants-To-Be-Free lefties!

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Business.
Reader Comments

With the advent of recordable cassetes in the last century, around 1970s, the same types of copyright paranoia struck the music industry.
This was easily settled by a deal between the makers of blank cassettes and recorders and the music industry for the cassette makers to pay a small {point something} percent to the music industry for each blank cassette sold.

The same sorts of 'agreements between parties' approach would of course be best in the present case.

But all aspects of life are becoming more and more involved in police inforcement-which always happens at some stage in a militarized police state.
ww

June 7, 2011 10:22 AM

I view this in rather simple terms. Technology, opportunity, and Arms race.

Technology has come to the point that we can take art and put it into 1's and 0's. The inherent flaw in 1's and 0's is that it is relatively easy to make off with them. (quite the contrary to make off with Michelangelo's "David") (I am of the general belief, if you do not want something stolen, do not put it out there at all)

Opportunity...the RIAA and MPAA and software designers (on a whole) have an opportunity to create media, which has anti-theft counter measures. Much like how paper media has developed security paper which effectively blocks scanning/reproduction. RIAA (et al) needs to get with the times here.

Arms Race...well you will always have thieves. Period. Some are smarter than others. While its nice to think that gov will always be there to prevent crimes, this is a logical fallacy. RIAA, MPAA (et al) need to continually keep current in an ever evolving bits and bytes arms race, to protect their investment.

Take an interest in thine self, and act accordingly. It doesn't take a brain surgeon to realize that. Advocating for Broad sweeping legislation which nearly makes it a crime to even hear or catch a glimpse of the material (as the article alludes...if I read it correctly) is without a doubt the lazy way out...and it protects neither Art, nor Artist, nor owner. It just potentially makes actionable defendants of us all.

June 7, 2011 12:02 PM

Walmart, its employees, suppliers, stockholders, etc. share in the communistic approach to law enforcement. And it is communistic. It takes a village, remember.
The solution in my opinion is to have the perpetrator of a crime pay three times the cost of the item stolen or destroyed, three times the cost of the trial, three times the cost of the policemen etc.
The criminal, once found guilty by a jury of his/her peers, must pay the costs. As in your case earlier the criminal didn't have the money. But the cost wasn't 2 million.
In any event, the convicted criminal could be required to work for the victim at minimum wage, and forfeit all wages until the bill is paid.
City, County, State and National Parks could be kept in good order and clean at no cost to the taxpayers. Litter picked up from roadways by the litterers would bring a halt to littering.
Crimes to property could be treated in the same manner.
If one were to steal a TV and be convicted, he would have to spend several years paying off the debt. And no tv to watch.
transportation to and from the holding tank, meals, clothes, etc. would have to be paid for at triple the cost.
One could spend 50 years for stealing $100.00
Thank you,
Robert Walker

June 7, 2011 11:05 PM

@Robert Walker

+1

June 7, 2011 11:08 PM

"The solution in my opinion is to have the perpetrator of a crime pay three times the cost of the item stolen or destroyed, three times the cost of the trial, three times the cost of the policemen etc."

Brilliant.

June 7, 2011 11:38 PM
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