“Punishment, then, will tend to become the most hidden part of the penal process. This has several consequences: it leaves the domain of more or less everyday perception and enters that of the abstract consciousness; its effectiveness is seen as resulting from its inevitability, not from its visible intensity; it is the certainty of being punished and not the horrifying spectacle of public punishment that must discourage crime.”
This is Michel Foucault talking about the decline of torture and public execution as crime-deterrents in Europe at the beginning of the 19th century. Now compare this with the current methods the record and film industry are using to deter piracy. The likelihood that any single pirate will be caught is essentially nil, but the fines that are handed out – quite publicly, I might add – are pretty much the equivalent of being drawn and quartered.
What interests me is the next passage. “… in punishment-as-spectacle a confused horror spread from the scaffold; it enveloped both executioner and condemned; and, although it was always ready to invert the shame inflicted on the victim into pity or glory, it often turned the legal violence of the executioner into shame.” Which is why they wore those black hoods, naturally.
Now tell me that’s not how a file-sharing lawsuit works! When we hear about a six-figure fine being dropped on some college kid or soccer mom, we have nothing but pity and sympathy for the defendents, and nothing but shocked disgust for the plaintiff.
My point here is not that the RIAA is a bunch of leather-masked gimps. (Well, not only that.) My point has to do with our legal system. The shift away from the torture and execution model was motivated, says Foucault, by our acceptance of the “essentially corrective character” of the legal system. Torturing someone to death won’t reform them. It might scare someone else off, but it’s not going to reform anyone. Once we started trying to reform criminals, public executions had to be abandoned.
In 21st century America, our penal code is essentially corrective. Our civil code, the code that copyright offenses are prosecuted under, is not. It operates under the older – and crueler – principle of of an eye for an eye. The punishment is not intended to serve the greater public good. Neither does it repair the material harm caused by piracy (which is how civil suits are supposed to work). It is a vehicle of catharsis, an opportunity for the wronged coporate entity to express its righteous indignation. No more, and no less.
p.s. Informed readers will note that all my quotes are taken from the first, like, nine pages of Discipline and Punish. To which I respond… shut up. I’m busy, ok? I’ll read the rest of it eventually.