The debate here at Bearing Drift about the House of Delegates’ failure to approve Tracy Thorne-Begland as a judge has been carried out extensively in the comments section of the two posts dealing with that. My entering that debate, thanks to Bearing Drift’s very intelligent readers and contributors, forced me to revisit my views on natural rights, civil rights, their interaction and conflict, their history, and the ethics behind them. My portion of the discussion has been called pedantic, nitpicking, or abstruse (and I tend to agree with any criticism that accuses me of being boring), so I will not rehash the arguments here.
But there was a story Saturday in the Virginian-Pilot that I believe can illustrate effectively my views on the conflict between natural rights and civil rights–when it is good and when it is bad.
Keith Carter, the owner of two sports merchandise shops, was convicted of one count of trademark infringement by retailing professional sports team paraphernalia. Out of his two shops in Chesapeake, he sold knockoff jerseys at a 75% discount to their legitimate counterparts. He claims he did not knowingly sell imitation goods, that he had received a good deal on his purchase because of minor manufacturing errors or quick-sale needs.
The judge in the case dismissed this argument, saying that if anyone could know a fake jersey, “I would think the owner of three [sic] separate stores…would be able to tell.” The Commonwealth’s Attorney echoed this in his argument. Keith Carter “should have known these were not genuine.”
So now someone in Keith Carter’s situation can be convicted of a Class 6 felony, face up to five years in prison, and will as a felon lose certain rights and liberties for the rest of his life.
Don’t infer the wrong thing; I am not arguing that Mr. Carter is innocent; nor am I arguing that it should be legal to counterfeit trademarked items. But is it in the state’s best interest to spend nearly $75,000 on keeping someone in prison while at the same time losing the tax revenue his sales provided?
In natural law, Mr. Carter would have a natural right to employ his property–his money–to acquire, possess, and relinquish whatever he wished. His liberty to do so would not be restricted to only those goods we as a society, through our laws, have determined are acceptable. In natural law, he has a natural right to imitate another person’s property, even with a deliberate intent to fraud, and sell it as his own.
But in civil law, he does not. He may not imitate another person’s property–even something as abstract as intellectual property–because of laws we have enacted as a society; not for the protection of the trademark holder’s profits, but because we wouldn’t want someone doing the same thing to us if we invented or designed something.
Generally, this is a good law. It restricts the autonomous exercise of natural liberties and property. It violates natural law. But it protects society as a whole by reducing the incentive for a cycle of personal vengeance that pervades a state of nature. It both pacifies and satisfies the natural instincts to protect what an individual thinks his and to avenge deception through violent retribution.
But specifically, to this law, it is bad. Not in its policy, but in its punishment. For by being convicted of this act, not only has Mr. Carter been deprived of his liberty and property by due process, but so has society as a whole.
By the law’s potential to imprison him for five years, the rest of society will pay for his care, education, training, health care, food, and living. And while we accept this expense for the protection of society against violent offenders, or to prevent our own property from being pilfered (not counterfeited), does our life, limbs, or property really need protection from a plagiarizer of product?
In Mr. Carter’s case, a representative of the sports teams, Robert Hartnett, estimated that retailing these knockoffs deprived the trademark owners of at least $149,000–and that was just in football team clothing. But is this really true?
Mr. Hartnett cannot prove his employers were deprived of that amount. He cannot show that Mr. Carter’s customers would have paid three times the amount for a similar, legal product. He cannot, nor can the state, order the confiscation of those imitations and demand the consumer instead buy the legal product at their retail price. Therefore, the trademark owners were not actually deprived of property at all; they were deprived of an opportunity to acquire property, and their logo was used fraudulently, but no one entered their warehouse and purloined their property.
In addition to the state’s expenditure on non-violent felons, they have also deprived society of tax revenue from Mr. Carter’s business. Assuming the “legitimate” clothing retail value of his imitations would have been $500,000, and he sold his imitations at a 75% discount of $125,000, that would equal $6,250 in taxes ($5,000 in state taxes and $1,250 in local taxes). In contrast, rather than the state being able to fine Mr. Carter the exact amount of illegitimate items sold ($125,000) for his illegality, they may only levy a fine of $2,500.
At maximum punishment, a $75,000 imprisonment, offset by a $2,500 fine, and yet denied as little as $6,250 in public revenue, would cost society $78,750. For one person. All to protect the abstract notion–not of physical property, but intellectual property.
Again, I am not of the libertarian bent that believes all intellectual property laws are bad; that just because no one is being physically harmed or having their physical property taken by another it should be legal. Natural law would say it should be legal; but civil law would say it could be illegal.
A bad civil law deprives the individual and society of liberty and property while really protecting nothing tangible in return; a good civil law, in this case and in my opinion, would be to provide both a disincentive for fraud and vengeance while bringing to society a net profit from those who violate it.