distribution. However, because the verdicts returned by the second and third juries were
sufficient to justify those remedies, the court found it unnecessary to consider the merits of the
district court’s order granting a new trial after the first verdict. And although the court
acknowledged the importance of the “making available” legal issue to the plaintiff recording
companies, the court ruled that they were not entitled to an opinion on an issue of law that was
unnecessary for the remedies sought or to a freestanding decision on whether Thomas-Rasset
violated the law by making recordings available.^333
On appeal, Thomas-Rasset lodged no objection to reinstatement of the first verdict,
subject to arguments about the constitutionality of the size of the damages. She also offered to
acquiesce in the entry of an injunction that would forbid her from making available copyrighted
works for distribution, which would render moot the issue whether making works available is
part of the distribution right of the copyright holder. In response, the Eighth Circuit observed
that it reviews judgments, not decisions on issues. The entitlement of the plaintiffs to the
remedies sought – damages of $222,000 and an injunction against making copyrighted works
available to the public – were the matters in controversy. That the plaintiffs sought these
remedies with the objective of securing a ruling on a particular legal issue did not make that legal
issue itself the matter in controversy.^334 “Once the requested remedies are ordered, the desire of
the companies for an opinion on the meaning of the Copyright Act, or for a statement that
Thomas-Rasset violated the law by making works available, is not sufficient to maintain an
Article III case or controversy.”^335
With respect to the scope of the injunction that should have been issued, the Eighth
Circuit noted that the district court’s refusal to enjoin the making available of the recordings was
an error of law, even assuming that the district court was correct in concluding that the
distribution right does not include a right of making available, because a district court has
authority to issue a broad injunction in cases where a proclivity for unlawful conduct has been
shown. Here, Thomas-Rasset’s willful infringement and subsequent efforts to conceal her
actions showed such a proclivity. Accordingly, the district court erred after the third trial by
concluding that the broader injunction requested by the plaintiffs was impermissible as a matter
of law. An injunction against making recordings available was lawful and appropriate under the
circumstances, even accepting the district court’s interpretation of the Copyright Act. Because
Thomas-Rasset was not resisting expanding the injunction to include that relief, the Eighth
Circuit directed the district court to modify the judgment to include the requested injunction.^336
With respect to the question of damages, the Eighth Circuit ruled that the district court
erred in reducing the third jury’s verdict to $2,250 per work, for a total of $54,000, on the ground
that this amount was the maximum permitted by the Constitution. Under relevant Supreme
Court authority, damages awarded pursuant to a statute violate due process only if they are so
(^333) Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 901-02 (8th Cir. 2012), cert. denied, 133 S. Ct. 1584
(2013).
(^334) Id. at 905.
(^335) Id. at 906.
(^336) Id. at 906-07.