This appeal followed a third jury trial of copyright infringement claims over file sharing involving 24 sound recordings.
The first jury trial found Jammie Thomas-Rasset liable for willful copyright infringement and awarded statutory damages of $9,250 per work for a total of $222,000. The district court subsequently granted Thomas-Rasset's motion for a new trial based on an erroneous instruction to the jury that making sound recordings available for distribution on a peer-to-peer network violates the copyright owner's distribution right regardless of whether actual distribution has been shown. The district court concluded that making a work available to the public is not "distribution."
The second jury trial again found Thomas-Rasset liable for willful copyright infringement and awarded statutory damages of $80,000 per work for a total of $1,920,000. Upon Thomas-Rasset's post-trial motion, the district court remitted damages to $2,250 per work for a total of $54,000, finding that the jury's award was "shocking." The record companies declined the remitted award and thus a third trial was held limited to the question of the amount of statutory damages.
The third jury trial awarded statutory damages of $62,500 per work for a total of $1,500,000. Thomas-Rasset moved to alter the judgment, arguing that any statutory damages award would be unconstitutional or alternatively, that the award should be reduced under the Due Process Clause. The district court granted the motion again reducing the award to $2,250 per work for a total of $54,000, the maximum amount the court concluded was permitted by the Due Process Clause. The district court also entered a permanent injunction against Thomas-Rasset but refused to enjoin her from "making available" copyrighted works for distribution to the public.
The record companies appealed arguing that the district court erred in granting a new trial based on the "making available" jury instruction in the first trial and in holding that the Due Process Clause limited the statutory damages award to $2,250 per work. The companies sought reinstatement of the first jury's statutory damages award of $222,000, and an injunction that included language prohibiting Thomas-Rasset from making the copyrighted works available to the public.
Thomas-Rasset cross-appealed arguing that even the minimum statutory damages award authorized by the Copyright Act would be unconstitutional.
The Eighth Circuit first addressed what it characterized as "tactical maneuvers" that sought to either, depending on the party, obtain or avoid review of the legal question whether making copyrighted works available is part of the copyright owner's distribution right under the Copyright Act. Noting that it "reviews judgments, not decisions on issues," the Eighth Circuit stated that the only matters in controversy were whether the record companies were entitled to damages of $222,000 and an injunction that included the "making available" language.
As to the injunction issue, the Eighth Circuit accepted, without deciding, the district court's interpretation of the Copyright Act that the distribution right did not include an exclusive right to make the recordings available to the public. But the appeals court concluded that the district court had still erred in refusing the language the record companies sought because it had authority to issue a broad injunction even if the conduct did not violate rights under the Copyright Act "where 'a proclivity for unlawful conduct has been shown.'" The Eighth Circuit held that such a proclivity had been shown here.
As to the statutory damages issue, the Eighth Circuit held that the award of $9,250 per infringed work for a total of $222,000, did not contravene the Due Process Clause. The court concluded that the award was "not 'so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable,'" noting that the award fell toward the lower end of the range established by Congress (currently $750 to $150,000 per infringed work).
The Eighth Circuit also rejected the notion that the noncommercial nature of the infringement made the award severe and oppressive or wholly disproportionate to the offense, again emphasizing the wide range of statutory damages available in the Copyright Act. And "[f]or those who favor resort to legislative history," the court noted that Congress apparently "was well aware of the threat of noncommercial copyright infringement when it established the lower end of the range."
Thus, in the end, the Eighth Circuit remanded with instructions to enter judgment for statutory damages in the amount of $222,000, and to enter a permanent injunction that precluded Thomas-Rasset from making any of the record companies' copyrighted works "available for distribution to the public through an online media distribution system."
The case cite is Capitol Records, Inc. v. Thomas-Rasset, Case No. 11-2820 (8th Cir. Sept. 11, 2012).