Update 9/17/12: As reported by Business Insider last week, Ms. Thomas-Rasset plans to take her fight to the Supreme Court. This could prove an uphill battle, as the Court has already denied certiorari in another music download case - Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487 (1st Cir. Mass. 2011) [enhanced version available to lexis.com subscribers]. In Tenenbaum, the 1st Circuit rejected arguments that:
- the Copyright Act is unconstitutional;
- the Act exempts so-called "consumer copying" infringement from liability and damages; and
- statutory damages under the Act are unavailable without a showing of actual harm.
Posted 9/12/12 ST. PAUL, Minn. - (Mealey's) Determining
that a jury award of $222,000 from almost five years ago was constitutional, an
Eighth Circuit U.S. Court of Appeals panel yesterday reinstated the award in
favor of a group of six plaintiff record labels against a Minnesota woman
accused of online file-sharing (Capitol Records, et al. v. Jammie
Thomas-Rasset, No. 11-2820 and 11-2858, 8th Cir.; See August 2011, Page 4).
(Opinion available. Document #24-120920-035Z.)
Without specifically ruling
on whether the defendant violated the Copyright Act by making songs available
on the KaZaA peer-to-peer (P2P) network, the panel found that a lower court
should have enjoined her from any future such actions, calling such an
injunction "lawful and appropriate."
Verdicts And Awards
The case began in April 2006
when the record labels, including Capitol Records Inc., Interscope Records and
UMG Recordings Inc., sued Jammie Thomas-Rasset for copyright infringement for
sharing more than 1,700 songs on the KaZaA P2P network. At an October
2007 trial, a jury found Thomas-Rasset guilty of willfully infringing 24
songs. Judge Michael J. Davis ordered her to pay $9,250 per infringed
song, for a total award to the labels of $222,000.
subsequently granted a retrial in June 2009, in which a second jury found her
guilty of willful infringement, this time awarding the labels statutory damages
of $80,000 per song, for a total of $1.92 million.
In January 2010, Judge Davis
granted in part Thomas-Rasset's motion for remittitur by reducing the per-song
award amount to $2,250, for a total of $54,000. In lieu of accepting the
remitted amount, the labels selected a new trial on damages, per the options
presented by Judge Davis.
After a new damages trial, a
jury on Nov. 3, 2010, again found Thomas-Rasset's infringement to be willful
and awarded the record labels damages of $62,500 per song, for a total
statutory award of $1.5 million. Judge Davis issued judgment in
accordance with the verdict. Both sides filed post-judgment motions, with
Thomas-Rasset again seeking reduction of the judgment against her. As
with the previous judgment, the labels asked Judge Davis to issue a permanent
injunction to prevent any further infringing actions by Thomas-Rasset.
Calling the jury's award
"appalling" and "severe and oppressive," Judge Davis again reduced the award
against Thomas-Rasset to $54,000. Although the judge said he was "loath
to interfere with the jury's damages decision," he found the award "to be
wholly disproportioned to the offense" of file-sharing "and obviously
unreasonable." He also concluded that the award violated the due process
clause of the Fifth Amendment to the U.S. Constitution. Judge Davis also
enjoined Thomas-Rasset from "using the Internet or any online media
distribution system to reproduce . . . or distribute" any of the plaintiffs'
Both sides appealed to the
Eighth Circuit. The labels sought a reinstatement of the first jury award
of $222,000, as well as a broader injunction that would specifically bar
Thomas-Rasset from making any of their recordings available for distribution to
the public. Thomas-Rasset sought a ruling stating that any statutory
award is unconstitutional and a vacating of the existing award.
The panel, which comprised
Judges Diana E. Murphy, Michael J. Melloy and Steven M. Colloton, declined to
review earlier rulings in the case and some of the issues involved with
them. Focusing only on the District Court's final judgment, the panel
reminded the parties that "this court reviews judgments, not decisions on
Turning to the injunction
issued by Judge Davis, the panel agreed that it was not broad enough. The
judge had declined to enjoin Thomas-Rasset from making sound recordings
available for distribution, stating that the Copyright Act does not
specifically preclude such activities. Regardless of whether that
conclusion is true, the panel found, the ruling was based on an error of
law. The District Court had "the authority to issue a broad injunction in
cases where 'a proclivity for unlawful conduct has been shown.'" Citing
Thomas-Rasset's willful infringement, which was affirmed by three juries, and
her attempts to conceal her actions by blaming them on her children and
boyfriend, the panel held that she showed such proclivity. The panel
directed the District Court to modify the existing injunction to include the
relief requested by the labels.
The panel also disagreed with
Judge Davis' conclusion that the third jury award violated the due process
clause. Although a damages award violates the due process clause if it is
"so severe and oppressive as to be wholly disproportioned to the offense and
obviously unreasonable," the panel noted that Congress used a "wide latitude of
discretion" in setting statutory damages guidelines in the Copyright Act.
Due process generally pertains to prohibiting excessive awards when a defendant
has not received fair notice of conduct that will subject him or her to
punishment. This is not the case with statutory awards where the
penalties and damages "are identified and constrained by the authorizing
statute," the panel said.
Thomas-Rasset argued that the
guidelines for reviewing punitive damages awards in State Farm Mutual
Automobile Insurance Co. v. Campbell (538 U.S. 408, 418 ) [enhanced version available to lexis.com subscribers] should be
considered. The panel said there is no Supreme Court precedent for
applying these punitive damages guideposts to the statutory damages
The panel held that $2,250
per work is appropriate for a case such as this where an infringer
"demonstrated an aggravated case of willful infringement." The panel
further stated that statutory damages are "meant to achieve an important public
interest" in copyright infringement cases, specifically noting the "serious
problem" of piracy that has afflicted the recording industry in recent years.
The labels are represented by
Paul D. Clement, Jeffrey M. Harris and Erin E. Murphy of Bancroft in Washington, D.C., Matthew
J. Oppenheim of Oppenheim & Zebrak in Potomac,
Md., and Timothy M. Reynolds and Eve G. Burton
of Holme Roberts & Owen in Denver.
K.A.D. Camara and Michael Lee Wilson of Camara & Sibley in Houston represent Thomas-Rasset.
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