Capitol v. Thomas
The filesharing case of Capitol Records v. Thomas-Rasset has a long, convoluted history. In October 2007, a jury found Jammie Thomas-Rasset liable for copyright infringement for file sharing, and awarded a $222,000 penalty for sharing 24 songs on a peer-to-peer network. That was an award of $9,250 per song. At the time, Thomas' case was the first file sharing lawsuit to reach a jury verdict. In May 2008, Judge Michael Davis requested briefing on whether Thomas should receive a new trial. The court said it was concerned that it might have made a mistake by instructing the jury that Thomas could be found liable if she simply made copyrighted songs available in a shared folder. There's good reason for this concern — as EFF noted at the time and several courts have since affirmed, "making available" is not a cause of action under copyright law. EFF weighed in as amicus in June of 2008. In September 2008, the trial court concluded that simply "making available" is not a distribution and on that basis granted Thomas a new trial. The judge also called upon Congress to amend the Copyright Act to avoid the award of damages in P2P cases that are "unprecedented and oppressive."
Things got worse: a second jury awarded statutory damages of $1,920,000, and when the trial court then held yet another trial, a third jury awarded $1,500,000. Judge Davis found that awarding $1.5 million for distributing 24 songs -- an amount of $62,500 for each song -- was "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." He therefore reduced the judgment to $54,000, a "mere" $2,250 per song.
The plaintiff record companies appealed Judge Davis' damages reduction to the U.S. Court of Appeals for the Eighth Circuit. EFF filed an amicus brief supporting the damages reduction, arguing that statutory copyright damages must pass constitutional due process review. Unfortunately, in a September 2012 decision, the Eighth Circuit held that the Constitution doesn't limit statutory penalties in copyright cases. The only limit would be the statutory limit of $150,000 per work. The appeals court therefore reinstated the original $222,000 penalty. Thus, even though Thomas-Rasset downloaded songs that sell for perhaps $2.00 each or less on iTunes or Amazon, the appeals court upheld a statutory damage award of well over 4,000 times the actual damages.