Post

Perspective on Payments: Comparing Filesharing Damages to Criminal Sentences

August 27, 2009 ,

Via BoingBoing and then through Gizmodo, Gaper's Block has a post up putting into some perspective the enormity and enormousness of the damages ($1.92 million) that Jammie Thomas is supposed to pay to the record labels for engaging in some P2P file sharing (Conor McCarthy of Gaper's Block estimated penalties under the Illinois Criminal Code):

Here is a list of 7 ideas to get you started, but first we should make a few rules. Some of these “crimes” have imprisonment as part of their sentence. That being said, I'm going to equate one year of prison with a $50,233 salary which is the median household income as of 2007. I.e. you would have made $50,233 each year you're in prison were you not becoming intimately acquainted with Wade, your cell mate.

Seven Crimes to Consider Before Music Piracy

  • Steal Music? No! Steal a child, preferably from a recording artist.

    That's right, the fine for regular old, Class 4 Felony child abduction is $25,000. It can also include one to three years in prison. So, if you get spanked as hard as possible after ganking a silly named celebrity child, you'll be down $175,699.

  • Steal the actual CD.

    Damn, that new Black Eyed Peas song is infectious, am I right? That chorus is so genius; “boom boom boom,” who thinks of that? I want to steal it. So instead of Kazaa, I'm going to swipe it from Best Buy. Retail theft of less that $150 (which is like, what, 10 CD's?) is a Class A misdemeanor. The penalty? Up to one year in jail and/or a fine of $2,500. At most you'd be down about $52,500. Definitely manageable. If it exceeds $150 though, you're in for a Class 3 felony. That bad boy will result in two to five years in prison and/or a $25,000 fine, so you're risking approximately $275,000. Beats $2 million though, huh?

  • Rob Bryan Adams.

    There's Bryan Adams next door, tooling around on his new John Deere riding lawn mower. That would definitely make mowing the lawn easier huh? Fun, even. Can't afford one, can you? No problem! Punch him in the face and take it! That's a Class 2 felony. The penalties come to a meager $376,631, which is a full $298,369 less than even the weakest RIAA judgment.

    ….

  • Now if you're going to pick nits with the post, you might note that $50,233 per year might be a bit of an arbitrary number to put on a year in prison—many people would pay more than that to stay out of prison for a year; many would not rate a year (especially as they get aggregated) as worth as much; those in prison may not have been making the national average, etc.

    Those are legitimate points to make in assessing the methodology, sure. But to pick a nit of a different stripe, note that all of these are criminal sentences. Jammie Thomas has not been convicted of any crime. The money she is to (attempt) to pay goes to the plaintiffs, not to the government.

    If Bryan Adams were to file a civil suit for his riding mower, he'd not likely get more than the cost of that mower, losses due to his inability to use it, and (if you did in fact punch him) the cost of dealing with the injuries. Same for a civil suit to recover losses due to shoplifting—the cost of recovering the merchandise and dealing wit the thief would be more typical remedies—certainly nothing so drastic as millions of dollars.

    If the DOJ were to prosecute Thomas, she'd (assuming the government met the slightly higher standard for assessing criminal liability) be on the hook for up to at least one year, but maybe as much as 5 or 10, with fines of up to $100,000 (since it's a Class A misdemeanor).

    Now that hasn't happened. The DOJ, while happy to expend effort to assert the constitutionality of such an extraordinary remedy, is unlikely to want to spend scarce resources prosecuting Thomas or other filesharers. The FBI, despite what your unskippable DVD warning may tell you, probably has better things to do than to investigate whether someone's using Handbrake legally or not.

    (As for what happens when there is a prosecution for copyright infringement, see here: a defendant making counterfeit CDs with infringing tracks on them was fined $5100. )

    Still, it's a useful exercise to think outside the narrow bounds of one's own issues and see how the law and its enforcement are applied in other areas. Just to give a bit of perspective.


    Note: The content of the Gizmodo post bears a real resemblance to the Gaper's Block post; with different text, but the same idea. The numbers, too seem to be rounded versions of those in the Gaper's Block post (which were calculated from Illinois statutes, given that Gaper's Block seems to be a Chicago-based blog). So while the text is different, the idea is the same. Gaper's Block is not credited in the text of the post, but there is a link to their post at the end of the article. But it's far too easy to assume that the idea and execution of the Gizmodo post came entirely from that site—the single link at the bottom will only let the reader know how much credit is due to the original if that reader clicks on the link. And the text of the Gizmodo post doesn't really give the reader any reason to.

    This sort of thing is exactly what I was talking about in my last post. There's no copyright infringement, but something does seem to be lacking in terms of attribution. There's got to be a better way of crediting a source than that.