Wednesday, May 18, 2011

State Senator Alex Padilla Takes on the 4th Amendment

Ridiculing the nanny-statism and other absurdities of San Fernando Valley Assemblyman Alex Padilla is something of a sport at Golden State Liberty. Just this year we've called him out for his crusade against prison guards who smuggle cell phones in to inmates, as well as his more recent effort to stop people from smoking in their own homes. Yesterday, however, the LA Times reported on the latest bill Padilla is pushing, and we're sad to say that it's less of a silly crusade and more in line with what we usually expect from California politicians: trampling constitutional rights to advance the interests of a lobby that supports business in their districts.

In this case, the subject is the Recording Industry Association of America's long war against CD and DVD piracy. As you might guess, they've applied a great deal of pressure in that time to get legislators to send the power of the state after disc producers. Well, they've definitely got Padilla on their side now. Padilla's SB 550 would allow warrantless searches of companies that press copies of CDs or DVDs, to ensure that discs bear legally required identification marks. The fact that the bill would seem to clearly violate the 4th Amendment's prohibition against searches without probable cause doesn't seem to have bothered either Padilla or the two Senate committees that have approved it. The bill has one more committee hurdle to clear before it goes to the full Senate, which could happen next week.

Where do we start with this nonsense? The 4th Amendment exists precisely to prevent police from arbitrarily raiding private property, and SB 550 seems expressly designed to encourage arbitrary police raids at private businesses. But even setting this aside, music piracy is a victimless crime, and if drug prohibition has taught us anything, it's that giving police wide discretion to prosecute such crimes opens the door to terrible abuses of authority. And finally, the Times article seems to suggest that piracy is behind collapsing CD sales and DVD rentals and purchases, and clearly the RIAA and Padilla are acting on this presumption. But does anyone really believe that? On-demand video from Amazon, Netflix, and cable providers has probably done more to damage the DVD market than any amount of piracy, just as iTunes and other online music stores have destroyed the CD market. We often leave our DVD player unplugged for weeks at a time, and we no longer own a CD player. So cracking down on disc replicators is unlikely to save the RIAA's clients, no matter how aggressive the police get.

20 comments:

  1. People should feel free to let Alex Padilla know what they think about this. You can contact his office at:Phone:
    818-901-5588
    Fax: 818-901-5562
    6150 Van Nuys Blvd., #400
    Van Nuys, CA 91401
    or in Sacramento:

    Phone: 916-651-4020
    Fax: 916-324-6645

    State Capitol, Room 4038
    Sacramento, CA 95814

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  2. Hell, this is practically sensible compared to what's going on in other parts of the country.

    (My favorite part: "a right to resist an unlawful police entry into a home is against public policy."

    Resistance to breaking the law is "against public policy"? Oh, okay. I didn't think about it that way.)

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  3. Yeah, the Indiana ruling floored me. Between that and this guy facing 6 years in prison for legally videotaping police, things could always be worse in California.

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  4. Silver lining: at least we don't have to read between the lines anymore or project worst-case scenarios: judges are now openly telling us that they support tyranny. They are no longer the wolf in sheep's clothing; they are telling us that they do not believe we have the right to resist government activity that they themselves admit might be illegal!!!

    Now, do I think even that will wake people up? Of course not. But it's nice to hope.

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  5. I think more people are awake than ever; to me, that was the silver lining of the Bush presidency and the 2008 economic collapse. But recognizing a serious problem and knowing what to do about it are two different things. And there really isn't an easy answer, beyond spreading the word and forming networks with people who share your concerns.

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  6. Well I certainly see your point. And you know my pessimism, particularly while attending grad school in the thick of it. Granted, young people at a UC school aren't a barometer of society as a whole, but the amount of people who refused to believe that government had anything to do with our current economic woes - I'm not saying people who considered it and dismissed the possibility, I'm saying people who would not even consider the possibility that more government might not be the answer - was enough to seriously make me depressed.

    This is why I check this site more frequently than ESPN.com or Ashton Kutcher's Twitter feed - it lets me know I'm not alone, that other people actually care about common sense.

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  7. That's funny; Ashton Kutcher's Twitter feed is what lets me know I'm not alone.

    All kidding aside, I've been thinking a bit about the "what do we do" topic, and may write a post on it soon. In the meantime, I liked this post from Economic Policy Journal.

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  8. This legislation compares pretty precisely to the general warrants and writs of assistance that helped to drive American colonists to revolution.

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  9. I'm not sure music piracy is a victimless crime.

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  10. @Anonymous: We'll have to agree to disagree on that. Buying pirated music or DVDs is a simple buyer-seller transaction, with both parties satisfied by the deal; so no one's reporting anything to the police. Therefore, to enforce the law against it, the police need to go looking for it, much as they do in the case of drug transactions. My point is that giving police the latitude to do that opens the door to abuses.

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  11. Justin,

    One small (but important) correction: "[J]udges are now openly telling us that they support tyranny. They are no longer the wolf in sheep's clothing; they are telling us that they do not believe we have the right to resist government activity that they themselves admit [is] illegal!!!

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  12. Agree with you on the fact that the policy is dumb, but calling music piracy a victimless crime seems a bit misleading.

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  13. Just saw your reply to the first anonymous post that happened to say the same thing mine did. It seems that you're setting up what i think is best described as a non sequiter; you say that both the buyer and the seller of the music are satisfied, therefore the police have to look for the activity, therefore it's victimless. What seems to be overlooked is that the seller and the buyer are effectively trafficking stolen property, the intellectual rights to which belong to the creator of the music in question. Ignoring the victim of the crime does not make it a victimless crime.

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  14. This is going to get confusing with all of the Anonymous posters. I'm Anonymous 8:30.

    I agree with the rest of your article. But, the definition of victimless crime is no one was injured.

    Certainly the music industry was injured. You're using their product without having paid them for it.

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  15. OK, to clear up the confusion, I don't really believe in intellectual property protection, so I tend to see it as a victimless crime. So, again, agreeing to disagree. In any case, it's sort of beside the point of the article.

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  16. So, if a company takes several years, and spends $1,000,000s of dollars designing a new microprocessor it's perfectly acceptable for anyone to come along, take that design (which is completely digital, and 100% IP), and produce the product themselves?

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  17. @Justin L: Yes. Here's why.

    By definition, a property right is a claim to the exclusive use or disposition of something. And a basic existence condition of property rights is scarcity. A claim to exclusive use is meaningless if the good in question isn't scarce. For example, if the earth were an infinite expanse of equally palatable land, land rights would be meaningless, because every person would have an infinitely extensible space to dispose of as they pleased. Unfortunately, the earth isn't infinite, so we need land claims to apportion its use. But ideas aren't scarce. That is, unless the ontology of the universe changed while we weren't looking, your claim to an idea in no way precludes it from popping into my head. So it's an empty claim.

    Let's take your $1 million processor design as an example. Say I take your processor, and while reverse-engineering it I figure out a way to redesign it that makes it 10 times as powerful and efficient, and I spend $1.5 million developing my new processor. If you sue me, aren't you essentially trying to rob me of my IP? And doesn't anyone who's ever trademarked a processor design have the right to come after both of us?

    My new processor leaves you with 2 options. One, you can pay me off for the rights to make and sell my processor. That takes care of me, but what about someone else reading this blog, who then decides to reverse-engineer and improve on my processor? That this process can go on forever points to how tenuous your "claim" to the processor design is. You're only other option is to do what we all say we don't like: call in the government to pick a winner.

    As a sign of how silly music IP can be, let's all remember that the record industry wanted $75 trillion dollars from Limewire. Those are some valuable ideas if they're worth 5 times the GDP of the United States.

    Non-4th-Amendment-related tangent over?

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  18. I'm not going to argue that ALL uses of IP make sense. But your basic claim is that you don't believe anyone has ANY right to IP.

    So, back to the microprocessor, they're designed basically as a very complex piece of software in a programming language, usually Verilog.

    A simple design will take a company of say 20 engineers a year or 2 to finish. It can require multiple test runs through a fab to work out all of the bugs, costing over $1,000,000 each time.

    Your basic argument is, since the design is done in a digital form, the company that has invested so much in it should just be out of luck if any of those employees decided to take the code, and hand it over to a competitor, or just post it on the web.

    I'm not talking about you taking the finished product, peeling back the packaging and trying to reverse engineer it (that was AMD's basic business model in the 90s).

    If I have absolutely NO right to intellectual property, it would be perfectly valid for someone to just copy the code, exactly as is, and whatever data files, and just send it off to fab, getting all the benefits of a finished product to sell while avoiding all of the developments costs.

    Your worldview seems to completely disregard the amount of work that goes into developing IP.

    You would also have to believe that software companies, some of which employ 1000s of people to develop their products have no rights over anything they produce.

    What incentive is there, then, for someone to invest in a new hardware startup company? Or a software company? In fact, why would anyone ever bother with putting up the money for the development costs of almost anything in the modern world? Most things are designed in a digital form, or you have digital records of all your work. With your worldview, no company would have any rights over what constitutes a significant portion of the cost of most products.

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  19. While I certainly appreciate your points, Justin, to say nothing of admiring your name, I have to ask, given the spirit of this blog: Is your solution to have government protect ideas?

    Freedom is not easy. Do I like the idea that I could invent something and someone could just rip it off? No way. But I like the concept of government force "protecting" my ideas even less.

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  20. Alex Padilla has strong motives for authoring bills like this. Here are just a few of them:

    (Campaign contributions Alex Padilla Has received - not complete)

    RECORDING INDUSTRY ASSOCIATION OF AMERICA PAC WASHINGTON DC / 20036-0000ID NUMBER EMPLOYER OCCUPATION943103 AMOUNT TYPE TRANS. DATE FILED DATE TRANS #$1,000.00 INITIAL 10/29/2010 10/29/2010 1539329-C7418

    WARNER BROS. ENTERTAINMENT INC. BURBANK CA / 91522-0000ID NUMBER EMPLOYER OCCUPATIONAMOUNT TYPE TRANS. DATE FILED DATE TRANS #$1,100.00 INITIAL 5/14/2010 5/14/2010 1487977-C6994NAME OF CONTRIBUTOR CITY STATE/ZIP

    WARNER BROS. ENTERTAINMENT INC. BURBANK CA / 91522-0000ID NUMBER EMPLOYER OCCUPATIONAMOUNT TYPE TRANS. DATE FILED DATE TRANS #$1,400.00 INITIAL 5/14/2010 5/14/2010 1487977-C6993

    DISNEY WORLDWIDE SERVICES, INC. BURBANK CA / 91521-0000ID NUMBER EMPLOYER OCCUPATIONAMOUNT TYPE TRANS. DATE FILED DATE TRANS #$100.00 INITIAL 5/14/2010 5/14/2010 1487977-C6992NAME OF CONTRIBUTOR CITY STATE/ZIP

    DISNEY WORLDWIDE SERVICES, INC. BURBANK CA / 91521-0000ID NUMBER EMPLOYER OCCUPATIONAMOUNT TYPE TRANS. DATE FILED DATE TRANS #$1,900.00 INITIAL 5/14/2010 5/14/2010 1487977-C6991NAME OF CONTRIBUTOR CITY STATE/ZIP

    MOTION PICTURE ASSN. OF AMERICA CA PAC ENCINO CA / 91436-0000ID NUMBER EMPLOYER OCCUPATION901889 AMOUNT TYPE TRANS. DATE FILED DATE TRANS #$100.00 INITIAL 5/14/2010 5/14/2010 1487977-C6990

    MOTION PICTURE ASSN. OF AMERICA CA PAC ENCINO CA / 91436-0000ID NUMBER EMPLOYER OCCUPATION901889 AMOUNT TYPE TRANS. DATE FILED DATE TRANS #$900.00 INITIAL 5/14/2010 5/14/2010 1487977-C2047

    DISNEY WORLDWIDE SERVICES, INC. MONETARY BURBANK CA/91521ID NUMBER EMPLOYER OCCUPATIONAMOUNT TRANS. DATE FILED_DATE TRANS #
    $2,000.00 8/24/2007 3/24/2008 1311371-C4055

    SONY PICTURES ENT., INC. MONETARY CULVER CITY CA/90232
    ID NUMBER EMPLOYER OCCUPATION
    AMOUNT TRANS. DATE FILED_DATE TRANS #
    $1,000.00 8/24/2007 3/24/2008 1311371-C4056

    MOTION PICTURE ASSN. OF AMERICA CA PAC MONETARY ENCINO CA/91436
    ID NUMBER EMPLOYER OCCUPATION
    901889
    AMOUNT TRANS. DATE FILED_DATE TRANS #
    $1,000.00 8/28/2007 3/24/2008 1311371-C4060

    PARAMOUNT PICTURES GROUP MONETARY LOS ANGELES CA/90038
    ID NUMBER EMPLOYER OCCUPATION
    AMOUNT TRANS. DATE FILED_DATE TRANS #
    $1,000.00 8/29/2007 3/24/2008 1311371-C4070

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