Why Is EZ Pass Suing Its Own Customers?

Toll BoothI 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?

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8 Responses

  1. Paul Gowder says:

    6. The revenues from tolls go to the right place (to the state that is providing a public good), the revenues from CDs go to the wrong place (largely to record companies who are screwing artists just as they’re screwing customers). Toll authorities are public in a way that record companies aren’t. Toll authorities don’t engage in payola. etc. etc.

    7. The penalties of copyright enforcement are grossly disproportionate to the injuries inflicted on the plaintiff (those three thousand dollar settlements offered, followed by large legal fees) compared to toll evasion fines (much smaller, much less brutal legal process).

    8. The connection between toll evasion and revenue loss to the seller is obvious. The similar connection with copyright infringement is not. This, of course, is the heart of the “suing their own customers” argument — many people download single songs and then end up buying the album, etc., and the data on actual revenue impact is highly, highly disputed.

  2. TJ says:

    How about this one:

    a. Toll enforcement is reasonably predictable, or at least perceived to be. If you evade a toll, you have a reasonable probability of being caught, and paying a reasonable fine. All up, paying a toll is probably the cost-benefit justified thing for a consumer to do.

    b. Copyright enforcement is completely unpredictable. If you infringe a copyright: (1) your chance of being caught is infintismal, but (2) the penalties are extremely harsh. All up, however, infringing the copyright is probably the cost-benefit justified thing for a consumer to do. Not to encourage copyright infringement, but that is what it is.

    Lots of lawsuits bring lots of publicity. In the case of tolls, the overall message of the publicity is that you will be caught. In the case of copyright infringement, the message of the publicity is that you won’t be.

  3. student says:

    Thinking in a certain logical fashion, there’s just no way that a fifty-pound sack of horse manure could be outweighed by an ounce of history….

    But, before the statute of 8 Anne there were about two centuries of English experience during which the Stationer’s Company copyright was inextricably intertwined with state censorship and the Court of the Sterred Chamber (Camera stellata, if you prefer).

    True, only about a century of that experience took place in the colonies—as Jamestown wasn’t established till 1607, and Plymouth not until 1620.

    But, following the statute of 8 Anne, copyright has still had an uneasy relationship with a free press. In recent decades, especially in “new media”, we’ve repeatedly seen copright abused as an instrument of censorship.

  4. Flash Gordon says:

    If it respect for tolls that is desired I have a suggestion. Why not restore the honesty in government that used to exist with respect to toll roads?

    That is, all revenue from tolls be strictly dedicated to paying for the cost of building and operating the road. When the road is paid for, abolish the toll. That is what happened in Colorado many years ago when a toll road was built between Denver and Boulder. The toll existed for years, but the day came when the bonds that financed the road were paid off, and the toll booths were torn down.

    How many decades ago was the New York Thruway completely paid for? Several. But the tolls remain and will so remain forever, with the revenue used for all sorts of stupid programs having nothing to do with the highway.

    Consider the Pennsylvania Turnpike. In spite of the toll revenue it is the worst maintained highway in the nation.

    Respect for tolls? It’s a dream and the governments involved have only themselves to blame.

  5. “Why Is EZ Pass Suing Its Own Customers?”

    well, if they’re not paying – isn’t it a stretch to call them customers?

  6. ray says:

    you think its reasonable until they try suing you for $3000 for a couple $0.50 toll violations. I have an E-ZPASS and use the tolls twice a day. Apparently the EZPass system is not linked together at all, so if you have a Maryland account and get a toll violation in Virginia it will not show up under ‘violations’ when you login to your account, and the E-ZPASS system does not notify you when auto-rebill fails for things like credit card expiration date being reached.

  7. Perhaps because people don’t expect EZ Pass and its users to display visible signs of respectful reciprocity towards each other? The relationship is baldly, simply, gloriously commercial in the narrowest sense. Copyright, on the other hand, comes freighted with all sorts of other ethical expectations about how authors and audiences relate to each other.

  8. Bruce Boyden says:

    So if only the record labels were more baldly commercial, there wouldn’t be a problem? 😉