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.