by Nicole Daley, policy intern

For the estimated 2.4 million people incarcerated in the United States, without access to many of the pleasures that we all take for granted, the ability to listen to music is deeply valuable. As our friends at Jail Guitar Doors have demonstrated, music can play an important role in rehabilitation and healing. After all, music is a universal language, a cross-cultural unifier that builds bonds of empathy and understanding.

But some former federal prisoners are now arguing that their access to music has been wrongly compromised after leaving the prison walls behind. In a recent complaint, five former inmates allege that SanDisk Corp. and Advanced Technologies Group LLC (ATG) are taking advantage of an exclusive contract with the Federal Bureau of Prisons (BOP) to financially exploit this vulnerable population at a time when their focus should be on successful reintegration into society. In the class action suit, filed in a United States District Court in Michigan, the former inmates assert claims for Sherman Antitrust Act violations, breach of the implied covenant of good faith and fair dealing, unjust enrichment, conversion, unconscionability and violations of state consumer protection laws. 

Beginning in 2012, federal prisoners have been allowed to purchase MP3 music players with certain features disabled such as the external memory slot and the integrated microphone. They have a limited range of music to choose from—explicit, violent or racially charged songs are not available. Prison officials have hailed this program as potentially helping with safety and reducing recidivism. At $.80- $1.80 per song, inmates can spend as much as $1,200 to $2,700 on music before reaching their MP3 Player’s full capacity. But, the lawsuit alleges, inmates are not informed during their initial purchase is that unless they also purchase a post-release MP3 player from ATG upon their release, they won’t have access to any of the songs or other audio files that they purchased during their incarceration. In addition, the former inmates have a limited period during which they may recover the purchased music collection, thus if a former inmate does not buy a SanDisk post release MP3 player from ATG within one year of release from prison, their purchase amount of possibly $2,700 will be lost, and they can’t transfer their files to another device.

The former inmates have little choice in the matter, because SanDisk’s Sansa Clip + is their only option; BOP’s contract gave ATG the exclusive right to supply prison-restricted MP3 players and MP3 music and audio files to inmates in BOP facilities. SanDisk is also the exclusive supplier of post-release MP3 player, so the only way the former inmates can retain access to their purchased music after release is to purchase another MP3 player from SanDisk. Imagine being required to buy an iPod twice in order to listen to the possibly several thousand songs you already paid iTunes for or lose them. To add insult to injury, it’s an MP3 player that costs $40 at Walmart, but $110 through this program. That’s predatory pricing that recalls the debate over the shockingly high cost of prison phone calls which recently prompted action by the FCC after years of hard work by a coalition of activists including MAG-Net, Center for Media Justice, and others.

BOP’s restrictions on what inmates have access to is not at issue. But how they implement these restrictions amounts to a particularly capricious and arbitrary use of digital rights management technology; while DRM is typically used to protect a copyright owner from infringement of their work, in this instance SanDisk and ATG are preventing former inmates from accessing music they have already purchased and are fully within their right to use. Antitrust law is designed to ensure a free and open market to encourage a thriving economy. Without competition in an open marketplace, suppliers of goods such as SanDisk and ATG are free to market their goods for whatever price they choose without the influence of a similar competitor’s good creating competition. When former inmates that means must pay a substantially higher than retail price for a post-release player, that certainly seems the kind of thing that federal antitrust laws are designed to guard against.

With respect to the other claims in the class action suit, In order to have a valid contract several elements are needed, including offer, consideration and acceptance. Another general concept of contracts is that the parties agreeing to the contract will adhere to their obligation to act in good faith and deal fairly with one another without breaking their word, using shifty means to avoid obligations or deny what the other party obviously understood. If ATG did indeed sell the former inmates MP3 players without clearly disclosing to inmates that they would not be able to retain their music unless they purchased another MP3 player from ATG post release, it could hardly be agreed that they were acting good in faith.

Another claim raised is conversion. Legally speaking, conversion applies when someone intentionally interferes with personal property belonging to another. To satisfy the requirements of a conversion claim a plaintiff must establish that the plaintiff owns or has the right to possess the personal property in question at the time of interference, the defendant intentionally interfered with the plaintiff’s personal property, the interferences deprived the plaintiff of possession or use of the property and the interference caused damages to the plaintiff. It could follow that ATG could be liable for conversion because the inmates became rightful owners of the song files when they purchased them but upon their release ATG is depriving them of those files unless they in effect pay them for them all over again by buying another MP3 player. While this issue has the potential to raise thorny recurrent questions about whether an MP3 purchase is a sale or a license, it’s difficult to see how the current practice benefits anyone but ATG & Sandisk.

BOP is not named as a defendant in the claim, but the plaintiffs seek to recover damages and other forms of monetary relief, in addition to an order stopping SanDisk and ATG from anticompetitive and deceptive practices and administrative changes designed to prevent any future deceptive practices including improved disclosure by ATG and SanDisk to incarcerated customers—at the very least if they’re going to continue these practices, potential buyers should at least understand the terms of the sale. Regardless of how the suit shakes out, we hope BOP will amend its contractual terms for any music provider to ensure fairness.

Access control technologies are intended as a preventative measure against copyright infringement to retain the value of the author’s work, and there can be legitimate circumstances for their use. But forcing people to buy exorbinately overpriced hardware is not a legitimate reason. Creators don’t benefit from restricting access to legally purchased MP3s by formerly incarcerated persons upon their release, at an especially vulnerable time that often involves having to navigate immediate transportation, shelter, food and employment needs. That’s the sort of time when music should be a comfort and an ally, not an excuse for exploitation. We’ll be monitoring how the case develops.
  

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