In his NYT essay “When Stealing Isn’t Stealing“, Stuart P. Green, a professor at Rutgers Law School, discusses the use of property laws to
persecute prosecute people who “steal” movies and music and the websites operators who enable these downloading thieves.
“THE Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested.”
The upshot of Green’s message is that we are living in a new economic age in which the zero-sum logic of market transactions — of value produced and then paid for by consumers, and if not paid for, then stolen — no longer works.
[W]e should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions.
The false logic of a market society can to made to work — sort of — until the products and services created by the market society overwhelm the logic itself. Let’s take Green’s legal reasoning into a market domain with which we are all very familiar.
The creators of television shows invest a great deal of effort and money in creating compelling, entertaining content for people to watch. The reason they do this, says our market society’s logic, is because they predict they will make more money than what they invested by charging marketeers wishing to display their ads in 30 second bits dispersed throughout a TV show that is watched by millions of enthralled viewers. The more viewers enthralled by the show and therefore willing to suffer the ads, the more the advertisers are willing to pay.
Since everyone in a market society pays a price in exchange for value received, watching the ads is the price — the toll — viewers pay for watching the enthralling TV.
So what about TV viewers who use DVRs to zap commercials? Given the logic of markets legally regulated in terms of property rights, those viewers are as guilty of stealing content as those who “illegally” download music and movies from the internet. In fact, technically speaking, when a TV viewer turns down the sound during commercial breaks and steps to the kitchen for a snack, she too is guilty of the criminal act of running the toll gates of commercial television.
TV viewers who avoid watching ads and file downloaders who avoid paying for content produced by others are, by market society logic, all guilty of criminal behavior.
We are in a new economic age. Our model of market dynamics and the laws we create to try to keep our market society working, have long since become worse than nonsense. People are being caught up in a logical Catch 22 created by the illogic of our price-tag society.