In prisons across the country, inmates are encouraged to participate in digital media programs. One in ten correctional facilities in the US has digital media programs in which inmates purchase both a device-such as an MP3 player or tablet-and content or services for the device-such as digital music-from a third-party vendor. Although fee structures vary, the facility or the state corrections department usually receives a commission on the revenue generated from inmates' purchases, thereby profiting off of each purchase that an inmate makes. As their contracts with third-party vendors end, state correctional departments may change vendors, either in search of a better program, a more profitable contract, or other benefits. A change in vendor may prompt a new policy that strips inmates of their previously purchased devices and digital purchases, forcing them to repurchase the same content from the new vendor.
Because their property has been taken by state actors who earn commissions off of every repurchased file, those commissions are used by the state to fund various state or prison functions, and the prisons do not fully compensate inmates for the value of their property, some inmates are considering challenges under the Takings Clause of the Fifth Amendment. While the Takings Clause has rarely been used in the context of digital property, it may offer inmates an opportunity to be compensated for the millions of dollars they have spent on digital media. In an increasingly digital world, courts will have to grapple with the application of the Takings Clause to digital property, and this situation offers an opportunity for them to do just that.
Amber M. Banks,
Please Don't Stop the Music: Using the Takings Clause to Protect Inmates' Digital Music,
22 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol22/iss1/4