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.
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.