Downloading 24 songs costs $220,000, which is quite a bit for music. The threat of a significant award under the copyright statute for illegal downloading is real. $9,250 per work was the award in the below Minnesota case, where the defendant replaced her hard drive and denied downloading, but was not believed. She also had written a college paper on the legality of Napster. That was in a first trial. In a second, the jury wanted to award $80,000 per tune. The Court said verdict two was too much, and instead remitted damages to $2,250 per work, for a total of $54,000, on the ground that the jury’s award was “shocking.” The recording companies declined the remitted award and exercised their right to a new trial on damages. Third time is a charm, and $62,500 per song was the new number. In every way, she undercut a plea to be an "innocent" in the matter. But, Ms Thomas-Rasset was left with an appellate case about the constitutionality of the copyright statutory award.

Here is the Thomas-Rasset case: Capitol v Thomas-Rasset.


There were three trials and an appeal. Most interestingly, upon the Court's insistence, the parties filed
supplemental briefs in which the recording companies defended the court’sinstruction and Thomas-Rasset argued that the court erred when it instructed the juryon the “making available” issue. After a hearing, the district court granted Thomas-Rasset’s motion for a new trial on this alternative ground, holding that making a work available to the public is not “distribution” under 17 U.S.C. § 106(3). The issue whether making copyrighted works available to the public is a right protected by § 106(3) has divided the district courts. Compare, e.g., Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 981-84 (D. Ariz. 2008), and London-Sire Records v. Doe 1, 542 F. Supp. 2d 153, 176 (D. Mass. 2008), with Motown Record Co. v.DePietro, No. 04-CV-2246, 2007 WL 576284, at *3 (E.D. Pa. Feb. 16, 2007), and Warner Bros. Records, Inc., v. Payne, No. W-06-CA-051, (W.D. Tex. July 17, 2006).

 The district court, relying in part on the now-vacated decision in Sony BMG Music Entm’t v.
Tenenbaum, 721 F. Supp. 2d 85 (D. Mass. 2010), vacated in relevant part by, 660 F.3d 487 (1st Cir. 2011), granted Thomas-Rasset’s motion and reduced the award to $2,250 per work, for a total of $54,000. The court ruled that this amount was the maximum award permitted by the Due Process Clause.

The Eighth Circuit relied on the old Supreme Court Case, saying that " The Supreme Court long ago declared that damages awarded pursuant to a statute violate due process only if they are “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919). Under this standard, Congress possesses a
“wide latitude of discretion” in setting statutory damages. Id. at 66. Williams is still good law, and the district court was correct to apply it." The record companies choose the first, and smallest verdict.

Tannenbaum Down for the Count?

In 2007, graduate student Joel Tenenbaum was sued for downloading and distributing 30 songs using file-sharing services like Napster, Morpheus, Kazaa and LimeWire. After his five days in court with a jury of his peers, he was found to have infringed the copyrights in the 30 songs. The result? Statutory damages of $22,500 for each song. Pow.

Now, this case is famous because Charles Nesson, law professor, used this case to question the constitutionality of copyright damages. The judge, Nancy Gertner, bought the argument, and, finding the award unconstitutionally excessive, reducing the award to $67,500. When there is a principle to fight, that fight usually happens, and here it did. Tenenbaum moved for a new trial or remittitur, arguing that the court should remit the award to the statutory minimum because its excessiveness both offended due process and merited common law remittitur. Judge Gertner bypassed the issue of common law remittitur, and reduced the jury award by a factor of ten on the basis that the award was unconstitutionally excessive under the standard for evaluating punitive damage awards enumerated in BMV v. Gore, 517 U.S. 559 (1996).

On to appeals. The First Circuit appeals court found Professor Nesson's attempt to change copyright unpersuasive, and reinstated the jury award of $675,000 on procedural grounds. It rejected the argument that copyright damages statute "was unconstitutional under Feltner [v. Columbia Pictures Television, Inc., 523 U.S. 340(1998)], that the Act exempts so-called ‘consumer copying’ infringement from liability and damages, that statutory damages under the Act are unavailable without a showing of actual harm, that the jury’s instructions were in error, and his various trial error claims.” The First Circuit left the door open for Judge Gertner, saying that, although her ruling on constitutionality was incorrect, she should consider common law remittitur. Remitittur is the power of the judge in a civil case to reduce or eliminate of jury's damage award. Remittitur is appropriate only if the award exceeds “any rational appraisal or estimate of the damages that could be based on the evidence before the jury,” where such evidence is reviewed in the light most favorable to the prevailing party.

Now, litigation takes turns unplanned by the best litigators. Here, Professor Nesson lost Judge Gertner when the case was sent back to district court. She retired. The new judge assigned to the case, Judge Rya Zobel, was less sympathetic. The Gore standards, it seems, do not apply in a statutory setting. Another Supreme Course case does, the Williams case does, and that says to defer to Congress in setting damages.

Where now, Professor Nesson?

 Tenenbaum Decision re: Gore or Williams?