The Accidental Patriot: In this July 2009 photo, Joel Tenenbaum, a former Boston University student who illegally downloaded and shared songs on the Internet, leaves federal court in Boston, after taking the stand in his defense in his copyright-infringement trial. In June 2013, a $675,000 verdict against him was upheld. (Bizuayehu Tesfaye/AP)

The first morning that then Boston University student Joel Tenenbaum woke to the realization that he had a $675,000 court judgment against him, it must have felt like some kind of weird hangover. Here he was, a young man proven to have copied 30 songs, now owing copyright owners the price of a college education several times over. He must have thought, “this can’t be happening to me.”

Late last month, after years of appeals, the First Circuit Court of Appeals affirmed Mr. Tenenbaum’s obligation to pay the money. One of the reasons the court gave for affirming this amazingly large amount was “the deterrent effect of statutory damages.”

The logic of deterrence is seductive and we need to have better safeguards against it.

Some theories of deterrence argue that if the legal system hurts one lawbreaker badly enough, that can and should compensate for low rates of enforcement.

Imagine that the government wanted to keep cyclists within marked bike lanes, but that it was extremely difficult to catch those who disregarded the lane limits. Increase the penalty enough and maybe the police would only have to catch a few of the straying cyclists in order to give the whole population the message that everyone should stay within the lines. In order to make the point effectively, one or two unfortunates whom the police actually nabbed would be punished to the full extent of the law — and the law would set the penalty high.

Under this theory, the disproportionately unfair punishment doesn’t matter. What does matter is that the rest of the citizenry will hesitate to break the law if the penalty imposed — on those unlucky enough to be caught — is high enough. The larger message outweighs the notion of individual fairness.

A statue of Revolutionary War hero and Connecticut native Nathan Hale is seen here at the state Capitol in Hartford. Hale was executed by the British when he was caught spying. (Bob Child/AP)

A statue of Revolutionary War hero and Connecticut native Nathan Hale is seen here at the state Capitol in Hartford. Hale was executed by the British when he was caught spying. (Bob Child/AP)

Whether the defendant is a straying cyclist or a wayward downloader of songs, one could view the unlucky soul who is punished for the purpose of teaching us a lesson as a kind of Nathan Hale. (In addition, sometimes the lawbreaker isn’t a wrongdoer at all. Sometimes he (or she) is a victim of his (or her) circumstances.)

Hale, a solider for the Continental Army during the American Revolutionary War, was sentenced to death by the British for spying. He is famous for saying on the scaffold, “I only regret that I have but one life to give for my country.”

To contemporary Americans, Nathan Hale is a hero. To those who executed him for spying, he was a 21-year-old rebel who violated British law. As far as we know, Mr. Tenenbaum may have perceived himself as acting in the spirit of liberty as did Mr. Hale.

Americans today don’t believe that Nathan Hale, the patriot, deserved to die, just as many don’t believe that Joel Tenenbaum, the music copyist, engaged in significant wrongdoing. (Especially because, for some time, it was unclear whether private, noncommercial uploading and downloading might be lawful as fair use.)

At some point the resemblance falters of course. We all agree today with the cause for which Mr. Hale broke British law, while many of us doubt that Mr. Tenenbaum’s cause is as just. But sacrifice — hurting the one for the sake of the many — should not be casually justified. The imposition of significantly disproportionate damage is unfair and there is a limit on the extent to which the government should ask anyone to sacrifice for everyone else. One doesn’t give up all rights to fair treatment by breaking the law.

Sacrifice — hurting the one for the sake of the many — should not be casually justified.

The Eighth Amendment of the Constitution prohibits “cruel and unusual punishment” under criminal law. On the civil side, other doctrines give some protection. But the logic of deterrence is seductive and we need to have better safeguards against it.

Consider copyright law, for example. Canada’s copyright law has such a safeguard: it caps at $5,000 the damages that a court can impose in any one proceeding, regardless of the number of works infringed — so long as “the infringements are for non-commercial purposes.” By contrast, our courts imposed $675,000 in statutory damages on Mr. Tenenbaum for his non-commercial copying.

Mr. Tenenbaum, we hope you have more than one lifetime of debt to give to your country.


Tags: Crime, Law

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  • Justin Locke

    So is the message, “don’t download copyrighted music” or is it “don’t argue with us when we make these demands of you?” According to wikipedia, the initial demand was for $5000 and went up each time Tenenbaum made a counter-offer. is that true?

  • Jasoturner

    Let’s recast this argument. Destroy one young man’s financial life (most probably) so that we can protect the commercial interests of the music industry.

    Well, okay, but only a fool would believe that this kid was not one of millions who downloaded and shared music. The injustice of targeting one guy and going atomic on him is glaring. Hell, you could have convicted a few hundred kids for a handful of thousands of dollars each and probably of had the same effect. And with Spotify and Pandora around, this stuff is irrelevant anyway.

    • kj011

      I think the article is an answer to your argument, so I’m not sure what you’re trying to say. In any case, if he hasn’t already, this guy should start a fund to get people to donate, and maybe some of the millions who downloaded will feel like they should help him out with a dollar or two. But I wouldn’t count on it since most people seem to feel like they have a right to free music and movies.

      • Jasoturner

        Actually, it is not an answer to my argument. What I am saying is that an absurdly draconian and life changing punishment on one individual to “teach a lesson” to hundreds of thousands of others doing the same thing is unnecessary, and was motivated in part by the commercial power of the music industry. Deterrence can be achieved in far more reasonable ways.

      • Doubting_Thomas12

        I have bought nearly all the things I pirated back in the day. A majority of them I would not have even considered if I hadn’t experienced them first.

        You’ll find if you actually explore that world, that there’s a sense of right and wrong. They may not sync up to yours explicitly, but people who pirate will either buy something anyways to support those who create it, or just pirate away with no intention of ever buying. The latter crowd would never have bought it in the first place, while the former might not have bought it if they weren’t able to try it out first.

        Things are seldom as black and white as we want them to be at first sight.

    • David F

      Your argument reminds me of the time I was driving up Rt. 3 doing about 75 mph, I didn’t pass a single car, they were all going the same speed or faster on the 55 mph speed limit highway. However I was the one the state trooper decided to pull over.

      His words to me: “If I could pull everyone over I would, but I can only get one car at a time.” Is it fair only I pay for breaking the speed limit that everyone was breaking at that time of day? The trooper could have given me a warning and let me go, he could have lowered my infraction to doing only 10mph over the limit but he didn’t. I had to pay the full penalty for going 20mph over the limit. So do you think I should not have gotten a ticket that day or should I have been given a pass?

      • mmcfee

        Was the cost of your ticket many times what seems fair and was it increased so as to deter other the motorists by example? Or would other motorists have received the exact same ticket and cost? If the latter, your argument is flawed.

        • David F

          Other motorists would receive the same ticket and cost both in the fine and the increase to their insurance premiums. The deterrence is in seeing someone pulled over.

          • mmcfee

            Which is exactly what didn’t happen to Tenenbaum. He didn’t get the same-cost ticket and just ‘pulled over’.

            The equivalent would be you were pulled over, got a ticket, showed up in court and they decided your fine was $13,500 instead of $100.

      • Jasoturner

        You are kind of making my point. I am willing to bet that when you were pulled over, every other motorist slowed down to the speed limit. Whether he gave you a $100 fine, or a $100,000 fine is irrelevant in terms of deterrence.

        Let’s finish your analogy. Were you fined, say, $100,000? And if so, did you feel that was fair or just or equitable? Because that is comparable to what happened to this kid.

  • David F

    Nathan Hale, an American hero spying on the British during the American Revolution is in no way comparable to some guy downloading songs illegally, that’s insulting to the memory of Nathan Hale and his sacrifice for this country.

    While I agree that $675,000 is a fairly steep penalty for illegally downloading songs, you lose my sympathy when you make the above comparison.

    I also have to say that seeing penalties like that certainly make me refrain from illegal downloads. So while it’s is an overly harsh penalty the idea of deterrence does have some effect here.

    • Jasoturner

      “While I agree that $675,000 is a fairly steep penalty for illegally downloading songs…”

      Yeah, I think most of us can agree on that one.

      • wendy j gordon

        I used the example of Nathan Hale deliberately. Sometimes an unusual comparison can shock us into seeing something we don’t ordinarily see.

        We ordinarily see the sacrifices heroes make. We ordinarily ignore the sacrifices lawbreakers are forced to make. Using a hero to help us remember that we should respect the rights of even lawbreakers to decent treatment isn’t insulting to the hero; it’s acknowledging the honor he is owed to help show a truth (or what I think is a truth) about how government should treat us all.


    • Doubting_Thomas12

      You’d be surprised… the biggest offenders know how to cover their tracks, and rarely if ever get caught. While the petty crooks who took $100 that fell out of an armored car get set up for 20 years.

      It doesn’t stop the ones the industry really wants to stop, and it just inflames both the big offenders and others to stop buying in the first place. Pyrrhic victory to the extreme.

  • randyc

    Nathan Hale is a pretty tortured comparison. For one thing, if I got my history right, the Brits got him on a righteous bust. Ironically, if they had suspended his sentence, rather than suspend him, or given him community service, all us Americans would be short one Revolutionary hero, one stirring quote, and the namesake for a whole bunch of New England companies. The whole philosophy of civil disobedience, as exemplified by Gandhi or King, depends on the government, any government, being draconian rather than merciful in enforcing those laws the protesters are calling into question.

    There was plenty of controversy when the music megaliths proposed anti-downloading laws. Now they’re on the books, and they have a damn heavy book to throw at Mr. Tanenbaum! Those who view him as a martyr to capitalism would have served him better by working harder to block or ameliorate those laws.

  • randyc

    How about drunk drivers? (1) Those working hard to eradicate drunks from the road tend to favor a stiff penalty for a first-offense DUI, and pretty much throwing the book at those w/ 2nd or 3rd busts. Yet (2) we continue to read about the drunk driver, usually after (s)he causes a fatality or life-changing injury, who had accumulated up to a dozen DUIs w/ little or no loss of freedom or driving privilege, much less car. You can argue the internal justice of (1), but the sorry existence of those unpunished yahoos, or the law firms who rely on them, in no way obviates their approach. It’s a damn big country, & Wyoming won’t have the same laws or enforcement as Rhode Island. Anti-drunk activists seek to even out DUI law nationally, & in nearly all cases that means toughening them. Deterrence is so intrinsic to this wh0le app0roach that it really goes w/o saying.

    • Doubting_Thomas12

      I might contest that… the biggest offenders never get caught. It’s the ones who don’t know how to cover their tracks that are most vulnerable. And they’re the ones who download maybe 100 songs, not tens of terrabytes of ill-gotten media.

      Also, nobody’s dying here. Very important distinction.