Another Major File-Sharing Case Goes Against The Defendant On Appeal

The latest decision in the only other high profile file sharing case came out yesterday when the Eight Circuit Court of Appeals issued its decision in Capitol Records v. Thomas-Rasset (11-2858).  Jammie Thomas-Rasset (nee Thomas) was accused of deliberately sharing twenty-four songs on the Internet via KaZaA.  There were three trials, all of which concluded that Thomas-Rasset was liable resulting in damage awards of $222,000, $1,920,000, and $1,500,000 respectively.  These trials were the result of the District Judge either granting a remittitur or having constitutional concerns over the amount of damages and reducing them as a consequence. 

Both sides appealed the last decision by the District Court.  The labels wanted to essentially vacate all of the proceedings after the conclusion of the first trial and receive a ruling that “making available” copyrighted works violated the Copyright Act.  The Appellate Court stated that District Courts were divided in that conclusion.  The specifics were based on an injunction issued by the District Court at the conclusion of the first trial preventing Thomas-Rasset “from infringing the recording companies’ copyrights by ‘using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the public.’”  Thomas-Rasset appealed the award based on constitutional grounds.

The Court addressed the “making available” and injunction issue first, holding that the issue wasn’t properly before the Court.  Nonetheless, the Court ordered the District Court to revise its injunction to include the language as an appropriate remedy, though it specifically stated that it is not deciding the issue of the statement as a violation of the Copyright Act.

Thomas-Rassett argued that even the minimum damage award available under the statutory scheme was unconstitutional.  The Court did not cite the recent Joel Tenenbaum case out of the District of Massachusetts dealing with more or less the same issue.  My post on that case is here.  The Court cited the same precedent, St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), with the same result.    Congress has the power to set the range of statutory damages without courts interfering.  Thomas-Rasset argued that the same amount multiplied by a thousand songs would result in a multimillion dollar damage award.  The Court called that speculative and said such an award can be reviewed if and when it happens. 

Tenenbaum’s case is headed back to the Second Circuit.  Jammie Thomas-Rasset’s case will be appealed to the Supreme Court.  I’m not sure if that Court has any interest in revisiting the Williams case.  I’d wager certiorari will be denied, at least until a different appellate court releases a conflicting decision.  [MG]