  photo credit: Thomas Roche |
There have been a few posts making rounds on social news sites that have been comparing the damages awarded in the second Jammie Thomas trial, $1.92 million, to fines for other major crimes, including murder, arson, dogfighting, etc. The most popular has been this one on Gizmodo, which in turn refers to this article on Gapers Block.
Though I agree with the fundamental principle that the damages awarded in the Thomas case were excessive, these comparisons are invalid and misleading. Though they are designed to show that the justice system treats copyright infringement more harshly than other crimes, that is not the case and making these comparisons only poisons the copyright debate.
To see that you have to understand the difference between fines and damages. So here is a quick primer on the two and how it applies to these comparisons.
Fines are NOT the Same as Damages
A fine is a criminal sanction. It is used to punish a violator of a criminal law, usually something small. For example, if you pay a speeding ticket, you’re paying a fine for speeding. Same goes for jaywalking or other misdemeanor crimes. Major offenses often also have fines attached to them as well, which Gizmodo points out. Maximums are usually set by the law and judges typically have a lot of discretion in applying them, if they do so at all (many are simply sent to prison without a fine).
In short, a fine is a punishment, similar in function to prison or community service in terms of function.
Damages, often called penalties, are civil sanctions. They are “an attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant’s actions.” Damages come in several varieties including compensatory, which are designed to repair damage caused by the defendant, punitive, which are added to compensatory in an attempt to “punish” the defendant, and statutory, as is the case with copyright law, which are damages set in the statute.
To be clear about this, the Jammie Thomas case was a civil matter and the jury awarded the record labels $1.92 million in damages. The other items listed are criminal cases and are subject to fines, not damages. However, victims of said crimes may still be able to file a separate lawsuit and obtain damages, making these crimes much more expensive than their fines alone.
Some Example Scenarios
The original article uses the example of burning down Metallica drummer Lars Ulrich’s house, noting, correctly, that it would be a fine of, at most $376,631 since it is a Class 2 Felony. However, after that is done, Ulrich (or his insurance company depending on the arrangement) could then sue for damages, including the rebuilding of his home, which likely is worth several million dollars, lost property and expenses he incurred because of the Arson, such as hotel rooms, court expenses, etc. There would also likely be punitive damages involved.
In short, though the fine itself would be much cheaper than the Jammie Thomas verdict, the damages awarded in a civil case would, almost certainly, be much higher and the arsonist would also be spending a lengthy stint in jail.
These articles only tell half the picture of these cases and several commenters to the articles have pointed this out.
Perhaps the best known case involving civil damages for a criminal case is the OJ Simpson Trial. Simpson was acquitted of murder in a criminal court but the family of one of the deceased, Ron Goldman, sued and the jury in the civil trial found him liable in his death and ordered him to pay $33.5 million in damages, which is approximately the same as $45 million today.
The courts have the difficult and unfortunate task of taking damages, which are often not financial in nature, and trying to put a price tag on them. This is not easy by any stretch. The Simpson case is perhaps the ultimate highlight of that but there are every day examples as well, such as pain and suffering damages following a car accident. This is why juries often have a great deal of leeway when setting damages in many cases.
Copyright is no different, though with copyright it is impossible to determine the actual damages in many cases because it is impossible to say how much money would have been saved if the infringement had not taken place. So the law provides statutory damages, the famous damages between $750 and $150,000 per infringement, and allows the jury to decide what is appropriate.
That is what happened in both of the Thomas cases and in the Tenenbaum case.
Bottom Line
Fines and penalties are different in when they are used, how they are used and why they are used. The only thing they have in common is that they both have to be paid. But even that has differences as many damages can be dismissed in bankruptcy court.
Putting the two side-by-side is a classic apples-to-oranges comparison. It is misleading and outright false. Though clearly these posts were meant to entertain and were intended to be humorous, spreading inaccuracies about both copyright law and the legal system in general does no one a service.
I repeat that I agree the fine in the second Thomas case, in particular, seems excessive to me. But it is what the jury awarded and an attempt to compare it to a fine for a murder in an attempt to outrage and/or poke fun, is simply misleading. There is much more to the story.
Thanks for the really interesting article. There is a lot of really useful and relevant information about speeding fines and you raise some interesting disussion points.
Good article. I am in the middle of this debate, and terms are constantly being misused. “Theft” and “Property” are the two most commonly misused.
In this case, there is an obvious difference between a fine intended to discourage, and damages intended to compensate for an actual loss. As it is impossible to meter the actual damages done through copying, statutory damages kicks in.
However – statutory damages is in the media, by politicians and everyone I speak to, regarded as a fine. She stole, therefore she must be punished. When I try to point out these are compensations for an actual loss, people get more fuzzy. If Jammie Thomas seeded at an 1/1 ratio, that means the record companies lost $24 – given that the downloaders were about to buy the CD but downloaded instead (loss incurred), and that noone first downloaded the song and then went out to buy it, go to a concert or buy a T-shirt (benefit accrued). For more on this, see the four kinds of filesharing as outlined by Lawrence Lessig in Free Culture.
In order for the RIAA associates to have actually lost $2 million, and a song cost $1 on iTunes and an MP3 is 5 mb in size, she would have had to have uploaded all the 24 songs 83.000 times, and every one of those can NOT have seeded anything back to anyone (straight download), all about to buy the song but didnt and none of them left any money through another business model.
This stuff is like Hitchhikers Guide Bistromathics – its a kind of math that dont belong on this planet!
There are a lot of copyright misnomers, I actually wrote an article on it a while back:
http://www.plagiarismtoday.com/2009/01/14/a-word-…
File sharing, piracy, content theft, etc. are all misnomers to be certain. But on the flip side they all have understood meanings. Some would argue that the comparisons to property aren't as off-target as some might say, Ben Sheffner being on that list (http://copyrightsandcampaigns.blogspot.com/2009/08/patry-vs-sheffner-on-copyright-as.html) but I am of two minds on that one issue.
To be clear though, statutory damages are NOT actual damages. Actual damages can be awarded under copyright law so it is not an attempt to be "compensations for an actual loss". There is definitely an element intended to discourage copyright infringing behavior, otherwise it would be easier to ask forgiveness than seek permission. That is one element. The other is that the amount of actual damages will never be known. Partly because the evidence was destroyed (for whatever reason) but partly due to the nature of P2P.
If we assume she shared on a 1/1 ratio (which seems extremely low considering she allegedly left Kazaa up and running), she shared 24 songs, likely to 24 people. Those people might have shared the songs with 24 others and those with 24 others, With file sharing networks as large as they are, it is impossible to tell how many times they were passed around where Thomas could be considered a contributory infringer. These factor into the damages done but can't be calculated. Furthermore there is no way to know how many of those were missed sales.
These types of "impossible to determine" damages plague copyright law so statutory damages were created. They need to be high enough to definitely cover any actual damages, add a discouraging element and also pay the plaintiff back for time, energy and hardship incurred dealing with the infringement.
In the end, I agree the Thomas verdict was high. She got hit with it because juries have a lot of leeway to work within copyright law, which was designed to deal with a wide range of infringements, and the jury in her trial didn't like or believe her. I think it was an emotional verdict.
I can understand given her defense, but that doesn't justify the outcome.
Good article. I am in the middle of this debate, and terms are constantly being misused. "Theft" and "Property" are the two most commonly misused.
In this case, there is an obvious difference between a fine intended to discourage, and damages intended to compensate for an actual loss. As it is impossible to meter the actual damages done through copying, statutory damages kicks in.
However – statutory damages is in the media, by politicians and everyone I speak to, regarded as a fine. She stole, therefore she must be punished. When I try to point out these are compensations for an actual loss, people get more fuzzy. If Jammie Thomas seeded at an 1/1 ratio, that means the record companies lost $24 – given that the downloaders were about to buy the CD but downloaded instead (loss incurred), and that noone first downloaded the song and then went out to buy it, go to a concert or buy a T-shirt (benefit accrued). For more on this, see the four kinds of filesharing as outlined by Lawrence Lessig in Free Culture.
In order for the RIAA associates to have actually lost $2 million, and a song cost $1 on iTunes and an MP3 is 5 mb in size, she would have had to have uploaded all the 24 songs 83.000 times, and every one of those can NOT have seeded anything back to anyone (straight download), all about to buy the song but didnt and none of them left any money through another business model.
This stuff is like Hitchhikers Guide Bistromathics – its a kind of math that dont belong on this planet!
There are a lot of copyright misnomers, I actually wrote an article on it a while back:
http://www.plagiarismtoday.com/2009/01/14/a-word-…
File sharing, piracy, content theft, etc. are all misnomers to be certain. But on the flip side they all have understood meanings. Some would argue that the comparisons to property aren't as off-target as some might say, Ben Sheffner being on that list (http://copyrightsandcampaigns.blogspot.com/2009/08/patry-vs-sheffner-on-copyright-as.html) but I am of two minds on that one issue.
To be clear though, statutory damages are NOT actual damages. Actual damages can be awarded under copyright law so it is not an attempt to be "compensations for an actual loss". There is definitely an element intended to discourage copyright infringing behavior, otherwise it would be easier to ask forgiveness than seek permission. That is one element. The other is that the amount of actual damages will never be known. Partly because the evidence was destroyed (for whatever reason) but partly due to the nature of P2P.
If we assume she shared on a 1/1 ratio (which seems extremely low considering she allegedly left Kazaa up and running), she shared 24 songs, likely to 24 people. Those people might have shared the songs with 24 others and those with 24 others, With file sharing networks as large as they are, it is impossible to tell how many times they were passed around where Thomas could be considered a contributory infringer. These factor into the damages done but can't be calculated. Furthermore there is no way to know how many of those were missed sales.
These types of "impossible to determine" damages plague copyright law so statutory damages were created. They need to be high enough to definitely cover any actual damages, add a discouraging element and also pay the plaintiff back for time, energy and hardship incurred dealing with the infringement.
In the end, I agree the Thomas verdict was high. She got hit with it because juries have a lot of leeway to work within copyright law, which was designed to deal with a wide range of infringements, and the jury in her trial didn't like or believe her. I think it was an emotional verdict.
I can understand given her defense, but that doesn't justify the outcome.