Of course, their webspiders are probably gathering evidence against us even as I type.

What the RIAA has in common with the death of a thousand cuts.

“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.

9 Comments on “Of course, their webspiders are probably gathering evidence against us even as I type.”

  1. fenzel #

    What about flogging? Are you familiar with the defense of flogging in _Starship Troopers_ (the book)?


  2. Gab #

    Foucoult is sexy. I’m even in the Facebook group that tells me so.

    I get frustrated with this crap a lot because I think the bottom line that will save everybody $$$ in the end is for the companies to not go after individual people but instead the suppliers of their software and the websites advertising torrents and stuff. It’s like a zombie video game: you can run around shooting individual or even groups of zombies as much as you want, but until you destroy the facility the virus originated from (or it starts its self-destruct-sequence), the game isn’t over- they’ll keep coming.


  3. Gab #

    Damnit, I misspelled “Foucault”…


  4. stokes OTI Staff #

    Gab, you’re totally right, but they tried to sue the software producers already, and it didn’t work. Since file-sharing software has legitimate uses, the producers aren’t liable for anything illigitimate we do with it. (The film industry filed a similar suit against VCR manufacturers back in the day, and was rebuffed for the same reason.)

    Websites that advertise torrents could be a better target (after all, you’re not allowed to put an ad in the yellow pages saying “Get your crack cocaine here!”), but all that would happen is they’d move to countries with looser copyright laws. I mean, look at the Pirate Bay.


  5. lee OTI Staff #

    @Stokes: i’m not sure what the current status of the Pirate Bay is, but at some point they were reported to be looking into moving to a country that was essentially this one guy’s self-proclaimed kingdom on an abandonded oil rig. Where there were presumably no copyright laws to speak of.

    I assume that’s what we’ll do with Overthinking It some day when the government bans Overthinking.


  6. Gab #

    Stokes and Lee: I’m ignorant to the nuances of international law, and more specifically that related to copyrights and intellectual property, but I *do* know the lackthereof makes it possible for countries outside the U.S. to do all sorts of stuff I find reprehensible. So I ask you both, do you think is it plausible for, perhaps, some sort of agreement like the U.N.’s to come to fruition in which there are a set of rules put down, with a clause or article stating each country is allowed to have its own internal laws and practices but isn’t allowed to violate the laws of other countries- but in a way that preserves the intellectual property rights of the country with higher standards? For sadly, the first reaction I had when reading both your responses was, “Ok, then make it illegal for Americans to own those copies,” but that’s essentially the same as suing the girl with cancer or the soccer mom, and again, doesn’t get the root of the problem.


  7. gzzzur #

    The problem of digital piracy won’t be solved through megalithic transnational legislation, digital entertainment is a paradigm shift similar to the invention of the audio recording. It completely revolutionizes prior models for obtainment, and to a lesser degree, consumption of music and other media.

    The old distribution model, on which the current holders of copyright are so dependent for income, has been overrun in just under a decade, and it is to be expected that such a system take its sweet time to restructure, but restructure it must.

    New models are emerging as we speak, but which one will prevail is anybody’s guess. I, along with others I’m sure, am of the opinion that the Live Concert will become the most precious commodity in the future when it comes to music, with really big acts like we saw in the latter half of the 20th century (The Beatles, Rolling Stones, Led Zeppelin, Madonna, U2, Oasis, MJ – I could go on) becoming more or less extinct, as success becomes less contingent on massive record sales and more reliant on impressive live performance (meaning more hectic schedules for artists) coupled with word-of-blog or whatever sort of internet-based hypermarketing scheme will be raping our minds at whatever point in the future we pick(facebook, I’m looking your way).


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