The $62,500 Question

Hammurabi was a ruler of ancient Babylon who perhaps had many achievements, but the one that we remember most is his code of laws.  A black stone monument on which the Code of Hammurabi was inscribed was found in the Persian mountains in 1901 and is currently housed at the Louvre in Paris.  At the time, the concept of the Code was revolutionary:  proclaim publicly what the laws are ahead of time, and publish them so that everyone might see them and know what behavior is expected. 

The Code of Hammurabi is also famous for embracing the principle of lex talonis, setting the punishment for putting out the eye of an equal to be having ones own eye put out and setting the punishment for knocking out the teeth of another man to be having ones own teeth knocked out.  The principle of an “eye for an eye and a tooth for a tooth” later found its way in some form into almost every judicial text, including such religious texts as the Old Testament book of Exodus and the Quran as well as in secular legal systems in such civilizations as Rome.  The concept still exists today in that punishments are generally expected to “fit the crime.” 

So how do we explain last week’s verdict assessing damages against Jammie Thomas-Rasset of $1.5 million for illegally downloading 24 songs from the Kazaa web site sometime in 2007 and violating the copyright of those who owned the songs?  After all, the cost of all 24 songs on legal sites is probably in the ballpark of a measly $50.  She is ordered to pay an average of $62,500 each for songs that most of us pay only a dollar or two for. 

The fact is that advances in technology have very much changed the way in which all forms of artistic expression are sold.  The sale of music was perhaps the first, with albums of music almost being a thing of the past in the reality of how music is sold.  But the increasing publication of electronic books and the new mechanisms for distributing video content will likely see copyright holders trying to extend the principles being laid down now in the music industry. 

Many see little harm in lifting a song here or a video there, and it is this view that is at the heart of the damages award in the Thomas-Rasset case.  In most cases, the damages that are assessed in civil cases are equal to the actual amount that a person lost as a result of the wrongful action.  In the case of downloading songs in violation of a copyright, such actual damages would be small and this concerned Congress when it was considering so-called “statutory damages” for copyright infringement.  Statutory damages may be assessed no matter what the actual value of the loss resulting from the infringement.  As Congress explained in its deliberations over the Digital Theft Deterrence and Copyright Damages Improvement Act in 1999, 

Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct.  Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. 

So the level of statutory damages was set at a level designed to get people’s attention:  between $750 and $30,000 (per work) when the infringement is non-willful and up to $150,000 when the infringement is willful.  They appear to have succeeded; the verdict in the Thomas-Rasset case has people’s attention. 

The case is also interesting because of its history.  The RIAA has maintained that it has been willing to settle the case for $5000, an amount that Thomas-Rasset finds unreasonable.  But in the first trial in 2007, she was found to have willfully violated the copyrights and was ordered to pay $222,000 — $9250 per song.  But the judge ordered a new trial because of an error in giving jury instructions, resulting that time in an order to pay $1.92 million — $80,000 per song — an amount that the judge described as “monstrous and shocking.”  At the time, he reduced the total award to $54,000, but a third trial resulted when the RIAA rejected the reduced amount. 

Is the award excessive?  It seems to be, but I was not on the jury and did not hear all the facts; all I really know about the case is what I have read in the newspapers and in the public briefs for the case.  What I do know is that as technology continues to advance and as books and videos are increasingly made available electronically, it is important to be aware that copyright-infringement issues are not theoretical.  Organizations that represent writers, artists, and composers see these technological advancements as a threat to the livelihoods of their members and actively work to ensure that penalties will be meaningful.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.