Using Human Mobility to Make Property Tangible

As I suggested earlier, this habit of criminalizing mobility is not simply taught or imposed in a top-down fashion by global agencies concerned with migration dynamics and problems. It is also a form of practical knowledge—a way of doing—to which law-enforcement officials are particularly accustomed and which they deploy when they deal with a range of enforcement problems. In some respects, South African police officials resort to laws concerning human mobility as a ‘default’ response to a range of crimes that they are unable to effectively control. A good example of this dynamic can be found in the way in which the police in Johannesburg have sought to crack down on the street trade in counterfeit music and films.

In inner-city Johannesburg, there is a thriving trade for copies of popular CDs and DVDs. An informal network of men and a few women of various nationalities run the trade. Some traders simply walk the streets with a few CDs or DVDs in their hands touting for prospective customers. Others work out oftheir apartments selling discs to regular customers. However, the most noticeable traders are those that have set up stalls on busy sidewalks, around train and taxi stations, and near large shopping centres. While the occasional stall might be set up on an ad hoc basis, and in isolation, there are several CD/DVD ‘markets’ across the city which attract most custom and most attention from the police.

Over the last few years the Johannesburg Central, Hillbrow, and Jeppe police stations have conducted regular raids on these markets. While individual patrol officers often conduct their own inspections and arrests, the raids generally involve coordinated and planned surprise attacks on the markets, involving 10 to 20 officers and several support vehicles. The raiding officers generally seize the property on display, destroy and/or confiscate the tables and goods, and arrest the suspected traders. In addition to police raids, a number of civilian groups conduct their own raids on the markets. For example, groups of unarmed civilian ‘street patrollers’ have, in addition to targeting suspected drug dealers on inner-city corners, taken to raiding the CD and DVD stalls and confiscating their goods. A few different artist collectives, made up of a range of local musicians, promoters, and producers, have occasionally followed suit.

These raids significantly disturb the traders’ business. In the lead-up to the 2010 Football World Cup the South African government came under considerable pressure from FIFA and representatives of the recording industry to ensure that counterfeit sporting goods and entertainment material would not be sold in and around the venues. As a direct outcome, police in the inner city of Johannesburg began raiding the stalls so frequently that many stall owners abandoned the markets and adopted more discreet and less effective distribution strategies. Clearly, this was an act of policing performance designed to appease an international audience. However, curiously none of the raids that occurred during the period when we were conducting research yielded convictions relating specifically to piracy or any attendant claims for damages or restitution of the intellectual property concerned. Instead, arrested traders tended to be charged and in a very few cases sentenced to fines for violating city bye-laws (for erecting structures on the sidewalk without a licence, or loitering) and for immigration offences. Perhaps more importantly, the police did not appear concerned to use the raids to cultivate informants or generate evidence which could be used to prosecute those responsible for producing the illegal copies. This was not an assault on the counterfeit supply chain.

In the absence of a concerted investigative and enforcement strategy the outcome was predictable. In the aftermath ofthe World Cup, and as the political impetus for anti-piracy efforts waned, so too did the raids. The market stalls began to reappear on the city streets, selling the same goods and—we assume—drawing upon a similar set of supply networks.

The raids on the street traders reveal how officials use laws on mobility to respond to complex law-enforcement problems. In this instance, officials deployed laws defining what constitutes a legal form of occupying public space and a right to travel to and remain in a country in order to police a crime which they were poorly equipped to effectively control. This point starts with the recognition that intellectual property crimes are a particularly intractable problem. While anti-piracy campaigners have tried their best, by way of analogy, to encourage us to think of film and music piracy as simple acts of theft, piracy is in fact a far more complex type of crime. Unlike other infringements on property rights, the criminal component of the act of piracy does not consist in the act of taking an object from another person or of occupying another person’s land illegally. Rather, piracy consists of illegally copying—and/or profiting from the copies of—an artwork, sound, or visual experience. In short, piracy is an unauthorized replication of an ‘idea’.

How does one police the reproduction of ideas? While the fall-back position for anti-piracy campaigners was originally to stress the importance of physical reproductions, the copies which are sold on the streets of many developing cities like Johannesburg are now usually the rump end of a long, complex, and largely ‘intangible’ process of illegal copying. The most powerful form of production and dissemination of illegal copies of music and film in today’s market are peer-to-peer torrent sites where a global array of anonymous ‘distributors’ and ‘users’ simultaneously upload and download component parts of files online. So, regardless of the tangible trade in disks, it is unlikely that policing could significantly stamp out piracy without in some way limiting South Africans’ access to the internet itself. Contemporary piracy cannot be meaningfully tackled without extensive cooperation from internet service providers and monitoring of broadband internet usage. To make matters worse, anti-piracy laws do not provide law-enforcement officials with an effective means of prosecuting offenders. In South Africa, the owners of copyright must launch a suit in order to gain a conviction, and experts or trained police officers must be prepared and willing to make the case in court.

Facing this difficult scenario and lacking the expert knowledge or resources to generate a meaningful response to copyright infringement, the Johannesburg police have simply responded in the manner they know best, by focusing their attention on the tangible manifestation of the problem on the city streets. This is a characteristically South African law-enforcement response to a difficult societal problem: including regulation of the sex industry, deterioration of the housing stock, pedestrian traffic congestion in the inner city, etc. Most South African observers are so familiar with this high manpower, raiding mentality that they tend to rationalize raids as unremarkable cases of ‘how we do things here’ or simply ‘what the police do’. This stems from an ingrained habit of seeing criminality as a form of infestation or spatially fixed disorder, and simultaneously viewing high intensity operational policing as a limited but necessary means of combating such infestations and restoring order. What is often not noticed is that the principal power of the dragnet which the police deploy in these crime sweeps are their collective capabilities in enforcing laws regarding illegal forms of physical movement. Effectively, the knee-jerk response of the police is to deploy a set of laws to a situation which enable them to configure the ostensible suspects as ‘out of place’, thereby partially absolving themselves of the need to construct the more complex story of a commercial crime. In this process, the act of emptying out the market stands in for the less achievable goal ofcleansing the internet. Evasive-yet-manageable people serve as proxies for uncontainable ideas.

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