From: 71201.1016@compuserve.com (MARKUS BRAKHAN)
Newsgroups: rec.music.phish
Subject: Last Word on Scalp Law - Promise!
Date: 12 Nov 92 06:02:39 GMT
Reply-To: 71201.1016@compuserve.com
Organization: The Internet

Jay,
 You misinterpret me in two crucial ways:
(1) I never said Congress _c_ouldn't; I just think Congress
_sh_ouldn't, primarily as a practical matter.
(2) The tenth amendment is not a limit on Congress's (note possessive
of Congress is Congress's, not Congress', Strunk & White, Rule 1) power
over interstate commerce, rather it is a limit on Congress's power to
usurp the states' (plural) "sovereign" police powers.

 The cause of the second misunderstanding is clear: you see a
conspiracy that I do not believe to exist. Moreover, you contradict
yourself:

|   Markus appears to be happy with the status quo.  I am not.  We have
|   been invaded by an insidious, sinister group.  I am not so passive
|   as to let it happen.
|
|   .  .  .
|
|    Unless the scalpers are part of an organized crime ring that
|    uses scalping as a tax shelter, (and many believe this is the
|    case) they will lose money and will look elsewhere for easy
|    pickings.
|      2) Future Solutions
|          A) Is litigation necessary?  I don't know, but I can
|  unequivacably say it is effective.  We have several statutes on our
|  side.  First the band or the fans can independantly bring an
|  action against scalpers for violations of the RICO statute. 
|   (Racketeering and mail fraud.)

 There are already sufficient federal statutes to cover any possible
situation created by a conspiratorial theory of ticket scalping. As Jay
mentioned, there are both civil and criminal penalties associated with
violation of federal mail fraud and the so-called RICO law (which are, 
incidentally, separate statutes). RICO stands for "Racketeering
Influenced Corrupt Organizations" and was passed in an effort to get at
organized crime. In my opinion, it is a bad law, because it punishes
people for "bad thoughts", meaning that even your grandmother could be
convicted under the RICO conspiracy provision. As a general rule, to be
sufficient under English common law and the U.S Constitution, a
criminal statute must require proof of (1) a bad act with (2) an
accompanying bad mental state. Thus the act of killing is murder if you
think about it before you do it, manslaughter if you're criminally
reckless. Under RICO, all you need to prove is bad thoughts: (1) an
agreement between to two or more people, (2) to do an unlawful act (3) 
affecting interstate commerce. Even the FBI manages to prove this
sometimes. The rationale is that an agreement is an act.
 Under the mail fraud statute, one needs to prove that someone has
placed material containing substantial misrepresentations in the U.S. 
Mail. This is how they eventually got Al Capone, along with the other
get-anyone standard, income tax evasion.
 If TicketMaster or other agents are involved with the street sale or
counterfeiting of tickets, they may be liable both under their
contracts with the performers and under the federal anti-trust law.
 All of the aforementioned laws already exist, and in combination with
the 47 states that Jay mentioned already have anti-scalping laws, it
appears to me that there are sufficient avenues for relief against this
bane of our existence.
 Unless Jay proposes allocating tax dollars to put FBI agents in Phish
show parking lots for the purpose of enforcing the federal statute, I
ask rhetorically: "what difference would would passing a federal
anti-scalping law make?" I argue none, and may even have undesirable
side effects. Passing a law doesn't make a problem go away.
 While it is true that local law enforcement officials may arrest under
federal law, why give the feds authority to send their own people just
to deal with scalper scum? Litigation is not a solution. It is just a
new problem that distracts one from preventing future occurrences of
the same problem.
 The only solution is distributing tickets through a wider variety of
better channels, and our own efforts to only purchase tickets through
legitimate channels. Pressure on local law enforcement agencies to
combat street sales of tickets may help, but I believe that once you
are in court, no matter how big your settlement or how long you put
them away for, the battle has already been lost.
 I repeat redundantly: bar-codes; box office, mail order and phone, 
strict sales limits; stand next to a scalper and just say "5 bucks" 
over and over until his eyes pop out of his skull. . .

 Apologies to those who I've bored or confused.

MARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSAMRKUSAMRKSUAMRKUS
Newsgroups: rec.music.phish