Why Is EZ Pass Suing Its Own Customers?
posted by Bruce Boyden
I had intended to post much more over the past couple of weeks, but Time did not permit. I asked it to be flexible, but Time tends to be a stickler about deadlines.
Anyway, a few days ago, I read a New York Times article on attempts by the EZ Pass system to crack down on toll evaders — drivers who purposefully go through the unmanned EZ Pass lanes and attempt to hide their license plates from the cameras by shielding them with various objects, including, in one odd case, a baby (I’m not sure I can picture how that was attempted). I was struck by this quote, about the money lost to toll evaders:
That is why Mr. Crosby and the other image review clerks are on the front lines of the never-ending battle to track down evaders who avoid paying tolls, wittingly or not. They each examine about 1,500 photos a day to identify the license plate numbers of the cars and trucks that go through E-ZPass toll booths without the electronic tags, or with ones that were broken or expired.
“If you let the bad guys get away with it, the good guys won’t pay,” said John Riccardi, a liaison for the Port Authority of New York and New Jersey at the service center.
This argument seems plausible on its face. Failing to enforce the EZ Pass lanes will diminish respect for the tolls, and lead to widespread toll evasion. But it is inconsistent with an argument heard frequently in copyright circles: that copyright enforcement, through lawsuits or DRM, fails to achieve any deterrent effect at all against the “bad guys,” and only forces “good guys” to jump through unnecessary hoops. Indeed, the argument sometimes goes, copyright enforcement decreases respect for copyrights, rather than increasing it. So does this argument apply to EZ Pass as well? Should EZ Pass be criticized, as the RIAA often is, for “suing its own customers”?
One option of course is to bite the bullet and maintain that, in fact, toll booth enforcement is no more legitimate than copyright enforcement and therefore both should be jettisoned. But I suspect most people making the copyright argument will want to distinguish highway tolls somehow. There are several possibilities.
1. Tolls actually pay for highways and highway maintenance, whereas copyright revenue is unconnected to producing more copyrighted works. Neither side of this argument seems to work as a rule. Certainly some copyright revenue goes to paying for prior work and helping to fund future work — think of a movie studio’s revenues. On the flip side, tolls do not necessarily go only to paying for road improvements. Yet the justifiability of toll enforcement does not seem to depend on how the money is being spent.
The argument in a more general form might simply be that tolls are legitimate, whereas copyrights are illegitimate, and that explains the difference. That states a difference, but I don’t see how it explains it.
2. Copyright enforcement through RIAA-style lawsuits and DRM is heavy-handed, whereas toll enforcement is not. I don’t see how being sued for running a toll booth is likely to be any more pleasant than being sued for downloading. And toll booths are more convenient than DRM? Really?
3. Tolls provide more notice of what’s permitted, whereas copyrights do not. This argument seems superficially plausible, but that plausibility is waning. Note that the only notice that’s relevant to this argument is notice that someone with legal authority wants to charge for access to the work. Toll booths provide clear notice that the state wants you to pay in order to access the road, but really obscure notice about why (it’s probably buried in a prior year state budget somewhere) or what your alternatives are (you could take an alternate route). Even if copyright law is hard to understand, the blunt notice that a copyright owner is charging for the work is in most cases fairly prevalent, especially now. Whereas there may initially have been some confusion about whether sites offering downloads in the 1990s were authorized to do so, if you’re getting movies still playing in theaters from alldvds4free.com, or downloading the Beatles from KaZaA, notice probably isnt’ the issue.
4. Tolls reduce congestion; copyright revenue does not. Of course, William Landes and Richard Posner have argued that in fact copyright licensing fees do reduce a type of congestion for creative works, at least where the “congestion” is caused by a proliferation of derivative works. But the main goal of peer-to-peer downloading suits and DRM is to prevent verbatim reproductions, rather than preventing derivative works. Due to intellectual property’s essentially nonrivalrous nature, there’s no congestion caused when unauthorized distributors transmit copies of works. It saps the market of some of its demand, but that’s not any different than saying that some people who were nominally obligated to pay did not. That’s the baseline assumption in both scenarios.
It’s the first part of the statement that I think is questionable, at least as a basis for the justification of toll enforcement. That is, while tolls undoubtedly reduce congestion on some roads at some times, that is not a universal feature of toll booths. There are some tolls that are located on roads that are hardly ever congested. The Greenway in Northern Virginia comes to mind, as does the Pascack Valley plaza on the Garden State, or the $2 toll that was long charged on the bridge in my hometown. If enforcement of those tolls is justified, then toll enforcement does not depend on congestion reduction.
5. People already respect tolls; consumers of copyrighted works do not respect copyright. The argument here is that while enforcement mechanisms can prevent an erosion of respect, they can’t build it up where it doesn’t exist. The problem with this argument is that I’m not sure it’s true as a factual matter. Sure, the technorati hate copyright. But they’re not exactly a representative sample of the population. There seems to be plenty of evidence that ordinary consumers take copyright seriously. See, e.g., the jurors in the Jammie Thomas trial. Meanwhile, while most people willingly pay tolls, it’s not because they’re filled with warm and fuzzy feelings about tolls or even about their need to chip in for road maintenance. At best, it’s a grudging respect. It seems copyright can at least claim that as well.
In short, I can’t think of a good way to distinguish the two. Should the EFF take on EZ Pass as its next litigation target?