July 22, 2011 | By corynne mcsherry

Judge Slashes P2P Award Again In Capitol v. Thomas

In the latest development in the first individual file-sharing case to go to trial (three times now!), Judge Michael Davis today reduced a $1.5 million damage award against the defendant Jammie Thomas-Rassett to just $54,000. Though he said he was reluctant to interfere with the jury's decision, the judge concluded that

[A]n award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first‑time willful, consumer infringer of limited means who committed illegal song file‑sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

The judge also declined to enjoin Ms. Thomas-Rassett from making the plaintiffs' works available, noting that while she was enjoined from committing copyright infringement, he had already ruled that "the Copyright Act does not provide a making-available right."

The ruling does not come as an enormous surprise. In his 2008 ruling ordering a new trial due to an erroneous jury instruction on the "making available" issue, Judge Hunt criticized the first jury award against Thomas-Rasset (a comparatively miniscule $222,000) and implored Congress to reconsider copyright's statutory damages scheme. This time, however, Judge Hunt expressly found that the jury's award was so severe and excessive that it violated due process.

[A]lthough Thomas‑Rasset played a role in the web of online piracy, she played a miniscule role – she was one of more than 2 million users sharing more than 800 million files on the day that MediaSentry obtained files from her. It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial.

Judge Davis is the second federal judge to find that massive jury awards against individual file-sharers violate due process. Last year, in Sony v. Tenenbaum Judge Nancy Gertner reduced a $675,000 award against another individual file-sharer, Joel Tenenbaum, to just $67,500, finding that the original award was “unprecedented and oppressive” and noting that even the reduced award was “more than [she] might have awarded in [her] independent judgment.”

We applaud Judge Davis for attempting to inject a degree of sanity and proportionality into the dangerously unpredictable world of copyright damages. Let's hope the First Circuit Court of Appeals takes heed as it considers the appeal in Sony v. Tenenbaum. As we explained last year in an amicus brief filed in that case, excessive statutory damage awards can stifle creativity and innovation that may involve even a small risk of copyright liability; creators and technology innovators just won't want to take the chance that they might get hit with a massive damages award. Thus, failing to subject copyright damages awards to rigorous due process review is not just unconstitutional, it undermines the fundamental purpose of copyright law: to encourage creativity, dissemination of information, and innovation.


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