Recent news stories and some direct personal experience has shed light for me on the underlying reality of the law in the willingness to enforce law and the real cost of doing so. Just today slashdot.org had a story about a judge who ruled that one can't just sell an MP3 copy without getting permission from the owner of the original. Regardless of the merits of the ruling, such as how is it legal to sell a CD you paid for, and not legal to see the same thing in a different format that you may have also paid for, the underlying issue would be, did you pay for the MP3 at all under the terms of Copyright. In addition, and this is the meat of the issue, how is it possible to enforce the Copyright and at what cost?
A totally unrelated story is the awful murder of prosecutors in Texas. Someone shows up at your door and blows you and your spouse away because you went after some criminals. That is a heavy price to pay to enforce the law, indeed. But the underpinnings of a nation run by Rule of Law is to enforce the laws and in this case the price may be something like war, whether massive force has to be displayed at home, or even, if the source is the Mexican Drug Crtels, to carry the fight deep into Mexico. This opens not only issues with international relations with our neighbor to the South, but highlights the issue of Border Security and Imigration policy, if the cause is other than some prison-based hate group. In any case, this suggests a high price of enforcement.
Legislatures pass laws. We have a tradition in our Constitution of trying to separate legislative and executive and then judical roles of government. This is a good idea primarily because it is a check on possible concentration and abuse of power, particularly in the hands of one person, but the branches of government have different roles and different means. Legislatures, Congress, State government, and on down to City Councels, pass laws, but often to please constituants without regard for enforcement. The main reason is the cost of enforcement. They can placate angry votors knowing full well that the real cost of implementing a law is prohibitive or that resources can't be used to enforce it.
This was illustrated to me on a local level along the the real solution, which turns out to be ecoomics, and not morality at all. Law often attracts the kind of people who cling to the certanity of moral codes, even when they might not be so clear as to their justification; that is why the cost of enforcement relates so well to the reality of legislation. This was evident in a local case. I wanted to reduce the daytime noise I had to endure due to landscapers with lawn mowers, leaf blowers, and hedge trimmers, which because of the number of managed properties in the neighborhood is pretty constant. I inquired at the City Hall and found that there is a niose abatment ordinance that applies. It is reasonaly objective about what is too loud, but the cost of enforcing it is prohibitive, and the police who are charged with enforcement clearly don't want to put the resources there. I would have to call about an event and wait for an officer to come out with an expensive and tricky to use acoustic meter to measure the noise and only then would a citation possibly be issued. The ordinance was passed in order to placate people like me who wanted to do something about noise, but it was written to to prohibitive in cost to enforce. At this point I had dreams of taking the law in my own hands, but that is not the real solution at all. The real solution turns out of be the cost of watering all that grass and shrubs that grow fast enough to keep the gardeners busy. The city has an incentvie for property managers to use drought-resistant landscaping that doesn't need as much maintenence.
Back to Copyright. It turns out that once a copy of a work is made and given to someone, the source loses substancial ownership rights to it. But not totally, they can go after flagerant unfair use, like massive redistribution of copies, but only up to a point. That point is the cost to them to enforce their ownership is what determines how well the laws protect them, not the laws themselves, and it is a good stretegy for them to allow and even encourage piracy.
The big change for all kinds of media as regards Copyright, is that the cost of distribution has gone way down, so that efforts to control the distribution and support the price of media, although supported by the law, are doomed to failure. If Amazon offers an audio CD at $20, fine, but minimally one copy is all that is needed to undermine that price in the hands of a pirate, and who gets caught stealing and is prosecueted is controlled by the cost of enforcement. This is a losing battle. There were be a few victories for the copyright holder, but most of the time he will lose to pirates because it is so easy to steal and not be caught. Copyright is an artifact of the days when distribution was much more expensive, and so is the existance of the recording industry. The point is that the business model of the recording industry that relies on expensive distribution costs and keeping a high price for media, is doomed, not matter what the Courts and their lawyers say.
If artists and recording companies want to maintain a business position, they need to add something to create the inducement for people to buy. It can't be to just protect the distribution and pricing system invented for hardcopy media, nor can it be price-fixing for digital media that supports the price of traditional hardcopy media, the iTunes model. They can make up some ground by allowing for free distribution of degraded copies, MP3s for instance, but as soon as peole get wise to the idea that they can't hear any difference and that WAV files always had meaningless bandwidth, that ruse is over. Or they can add some value-add in extras such as album art or takes not included in the original release, etc.
Finally, they can realize that their business model has been rendered obsolete by technology, and that they have to restructure. It is now possible for many more artists to produce and distribute their work, so the centralized control by the media companies is not longer needed. The law is a futile effort to maintain the old business model and it will be undermined by the cost of enforcement. With many more artists flooding the market, and most being business failures, either people will do art because they have to, or some will discover other means to promote them, which might include giving away copies.
A similar idea applies to illegal drugs. The economic inducements for organized crime is profit created by demand for substances declared illegal by moralizing law makers. The risks are drug use are known to be self-limiting, or treatable, which is what we have learned about alcohol. The battle against tobacco is more about its effects on others than the prohibition about its use. Nothing would reduce the incentive to market ilegal drugs than by making them legal, if regulated heavily. This directly relates to the cost of enforcing laws against them, and not just in a trivial way, because the violence associated with drug trafficing is due to the price demanded for contraband which factors in the risk of confescation by authorities trying to stop it. Nothing would end the traffic easier than if it wern't so profitable, and being illegal, mnearly all of the profits go to the leaders of organized chrime who exploit those under them and continue to do so because the law doesn't intervene in their secretive activity. Control and abuse thrive on secrecy which can be helped by declaring something illegal.
This latter point relates to something even bigger, it is that disclosure, openness. transparancy, is the most effective weapon against abuse of power, against exploitation of all kinds. Groups are exploited when their activites are outside the law or ignored by the protections of an orderly society which is defined by stability and trust in economic institutions, Most of the issues discussed above are due to change and instability of economic arrangements, and the lack of protection given to individuals who engage in unsanctioned activities. One the one hand, the media pirate may exist becaue it is too easy to not get caught stealling and pay the price of getting caught, but organized crime may exist because of activity that is deemed illegal and hence not monitored or regulated. In both cases it is costly to enforce the law.