Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. To members of the born-digital generation, for whom sharing music on the Internet is as commonplace and innocuous as driving 60 in a 55 mph zone, the prosecution of Joel Tenenbaum and others like him is wholly analogous to this hypothetical. Congress lacks the constitutional power to delegate such a prosecutorial function to a private police, which is the role that the recording companies and its industry organization, the RIAA, is embodying.
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