purchased, at most, for thousands of dollars, not the possibility of hundreds of thousands – or
even millions – of dollars in profits.”^329
Finding a broad legal practice of establishing a treble award as the upper limit permitted
in both statutory and common law contexts to address willful or particularly damaging behavior,
the court concluded, with citation to the Tenenbaum case, that “in this particular case, involving
a first-time willful, consumer infringer who committed illegal song file-sharing for her own
personal use, $2,250 per song [three times the minimum statutory amount], for a total award of
$54,000, is the maximum award consistent with due process.”^330
After the court issued this ruling in the Thomas-Rasset case, the First Circuit reversed the
Tenenbaum case, finding that the district court should not have reached the constitutional issues,
but instead should have relied upon the mechanism of remittitur/new trial to address the size of
the award. However, it should be noted that the procedural posture in which the district court
issued its constitutional ruling in the Thomas-Rasset case, in which a previous rejection of
remittitur and election of a new trial had taken place and the defendant had not requested
remittitur again, was very different from the procedural posture in which the Tenenbaum court
issued its ruling, where the court simply went directly to the constitutional issues in response to
the defendant’s motion for remittitur or a new trial.
The court in the Thomas-Rasset case issued a permanent injunction prohibiting the
defendant from infringing the plaintiffs’ copyrights, present or future, in any sound recording.
The court rejected, however, the plaintiffs request that the court include language in the
injunction barring the defendant from “making available” any of the plaintiffs’ sound recordings
for distribution:^331
Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs’ copyrighted works
available on a peer-to-peer network, she will have completed all of the steps
necessary for her to engage in the same illegal distribution of Plaintiffs’ works for
which she has already been found liable. Because the Court has held that the
Copyright Act does not provide a making-available right, it will not enjoin
Thomas-Rasset from making the copyrighted sound recordings available to the
public.^332On appeal, the plaintiffs argued that the Eighth Circuit should reverse the district court’s
order granting a new trial and reinstate the first jury’s award of $222,000. The plaintiffs also
sought a broadened injunction that would forbid Thomas-Rasset from making their copyrighted
sound recordings available for distribution. In summary, the Eighth Circuit held that the
plaintiffs were entitled to the remedies they sought: damages of $222,000 and a broadened
injunction that prohibited Thomas-Rasset to make available the plaintiffs’ sound recordings for
(^329) Id. at 1010.
(^330) Id. at 1013.
(^331) Id. at 1016.
(^332) Id.