You hear a great tune on Internet radio or at a friend’s house and want to download it. You look for a legal service that carries it, but the only one you find is overpriced and is hampered by anti-copying technology and other restrictions so that it will only play on one kind of player (which you may or may not own), so you can’t add that song to an MP3 CD collection for use in your car. Or do anything else with it that you might want. Conversely, you can easily download an unrestricted, therefore fully-useful, version of that song from illegal sources. Other than its illegality, the bootleg version is superior to the legal version in every way — and it’s free, too. Which will you choose? Now let’s look at how U.S. immigration laws offer potential immigrants a similar choice.

Pretend you live in an out-of-the-way Mexican village where there are no jobs. (There are plenty of villages in Mexico where there are literally no jobs available for young, willing workers.) You hear tales from friends and relatives about getting paid more in the U.S. for an hour’s work than you’d get for a day’s work in Mexico, assuming any work was available. You make the sound economic decision to go to the U.S. to work. It’s a long trip to an alien land, and you’ll be lonely there, but you’ll have money to send home instead of hanging around the house and being a burden to relatives. So, being a law-abiding sort, you decide to apply for a U.S. work visa through official channels.

BAM! Reality slaps you in the face. The chance of an ordinary, small-town Mexican actually getting a visa that will allow him or her to work in the U.S. approaches zero, and even the most persistent applicant may wait many years to get that visa, even if relatives and a friendly employer — or even a spouse — in the U.S. step forward to sponsor you. Not only that, the application process is far from free. Indeed, for a small-town Mexican it is about as affordable as a Park Avenue mansion is for the average American worker.

Meanwhile, going to the U.S. illegally is onerous and even hazardous, and may have fees attached in the form of payments to human smugglers who help you get across the border, but going to the U.S. illegally is far easier, faster, and less expensive — and most important of all, more likely to succeed — than going through the legal process.

Legal or Illegal: Which is the Rational Choice?

Casual music sharing is not new. As a teenager in the 1960s I routinely taped friends’ records and shared those tapes with other friends. I had a big Roberts reel-to-reel tape machine that made excellent copies of the music on those records. When cassette tapes came along, it got easier to copy music from records, although the quality wasn’t quite as high as I got on my big tape deck. Now, of course, it’s trivial to copy or download music and preserve its original (digital) quality. And it’s comparatively safe, too; if you share music the old-fashioned way, by copying friends’ CDs, there is nearly zero chance that the RIAA nasties will catch you. Even illegal downloading from the Internet is comparatively safe if you’re careful. The RIAA and their associated bullies prosecute a few hundred illegal sharers every year — out of tens of millions.

Meanwhile, at the border, hundreds of thousands cross every year and few get caught. The ones who get caught and sent back often can and do try again. If we put the caught ones in an American jail or detention facility, we’re feeding them every day, and since a lot of the people trying to come to the U.S. illegally are so poor that they have trouble buying food at home, confinement in a detention facility isn’t necessarily a horrible punishment.

Both music sharers and potential immigrants are in a position where illegal behavior gives them what they want faster, easier, and at less cost than the legal alternative, with penalties light enough that they do not effectively deter illegal behavior.

“We need more enforcement!” is a common reaction to this dilemna. Uh huh. The music industry has tried this approach and it has failed. Now some of the smarter music distributors are realizing that if, instead of criminalizing their customers, they offer them reasonably-priced music without a lot of stupid anti-copying mechanisms built into it, customers will almost always choose the legal alternative.

On the immigration front, in order for strict law enforcement to succeed we must have an effective legal immigration system. I don’t mean we should open the door to every person who wants to come to the U.S., but we must at least hold out a rational hope that a Mexican villager (or his equivalent from Africa or Asia) can come here legally, and make that hope firm enough that he is unwilling to risk a chance at a legal move to the U.S. by slipping across the border illegally.

Think carrot and stick: we need effective immigration law enforcement as the stick side of the deal. But to make that stick effective, we must also offer a nice, big (legal) carrot as an alternative.

Ditto for music sharing, but that carrot/stick conundrum will happen on its own sooner or later, without government intervention, because music vendors who fail to provide legal ways for their customers to buy their product will soon go broke and leave the field to their more enlightened competitors.

This entry was posted on Thursday, May 24th, 2007 at 9:23 am and is filed under Politics. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.