limit for non-willful infringement, it could not be said that its amount was either wholly
disproportioned to the offense or obviously unreasonable.^324
On appeal, the First Circuit affirmed that the $675,000 statutory damages award did not
violate due process, finding that the district court had applied the correct standard to judge the
constitutionality of the award and reached the correct result for the reasons the district court had
given.^325
(d) Capitol Records v. Thomas-RassetThe case of Capitol Records, Inc. v. Thomas-Rasset^326 presented a factual situation very
similar to that of the Tenenbaum case. Jammie Thomas-Rasset, an individual, was accused by
several record companies of copyright infringement for downloading and distributing their
copyrighted sound recordings through the Kazaa peer-to-peer filing sharing application. Three
jury trials were conducted, each of which resulted in a finding of willful infringement. The first
jury returned a statutory damages award of $9,250 per song for a total award of $222,000 based
on the defendant’s distribution of 24 songs. The court vacated the verdict, however, and granted
a new trial based on its conclusion that it had erred in giving a jury instruction which addressed
the existence of a “making available” right. The second jury returned a statutory damages award
of $80,000 per song for a total award of $1,920,000. Upon motion to set aside the award, the
court ruled the award was shocking and unjust and remitted the award to $2,250 per song, or
three times the statutory minimum – the same amount as the district judge used in the
Tenenbaum case. The plaintiffs then exercised their right to reject remittitur and requested a new
trial. The third jury returned a verdict awarding statutory damages in the amount of $62,500 for
each song, for a total award of $1,500,000.^327
The defendant filed a motion to reduce the damages award on the ground that it violated
the due process clause of the Constitution because it bore no reasonable relationship to the actual
damages caused by the defendant. The court noted that, although in the past it had endeavored to
avoid unnecessary adjudication of a constitution issue by relying upon remittitur, based on the
plaintiffs’ demonstrated refusal to accept a remittitur and the fact that the defendant had not
requested remittitur, the court felt it was required to address the constitutionality of the award.
Reviewing the relevant legal authority governing the constitutionality of damage awards, the
court concluded that, although the due process clause does not require that a statutory damages
award be confined or proportioned to the plaintiff’s actual loss or damages, the award should
bear some relation to the actual damages suffered. That was not the case here.^328 “In the case of
an individual, like Thomas-Rasset, who infringes by using peer-to-peer networks, the potential
gain from infringement is access to free music to build a personal library, which could be
(^324) Id. at 14-18.
(^325) Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67, 70-72 (1st Cir. 2013).
(^326) 799 F. Supp. 2d 999 (D. Minn. 2011), rev’d, 692 F.3d 899 (8th Cir. 2012), cert. denied, 133 S. Ct. 1584 (2013).
(^327) Id. at 1002-03.
(^328) Id. at 1003, 1007-08.