CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 1 of 38
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`________________________________________________________________
`
`CAPITOL RECORDS INC.,
`a Delaware corporation;
`SONY BMG MUSIC ENTERTAINMENT,
`a Delaware general partnership;
`ARISTA RECORDS LLC,
`a Delaware limited liability company;
`INTERSCOPE RECORDS,
`a California general partnership;
`WARNER BROS. RECORDS INC.,
`a Delaware corporation; and
`UMG RECORDINGS, INC.,
`a Delaware corporation;
`
`Plaintiffs,
`
`v.
`
`JAMMIE THOMAS‐RASSET,
`
`MEMORANDUM OF LAW & ORDER
`Civil File No. 06‐1497 (MJD/RLE)
`
`Defendant.
`________________________________________________________________
`
`Andrew B. Mohraz, David A. Tonini, and Timothy M. Reynolds, Holme Roberts
`& Owen, LLP; Felicia J. Boyd, Kara L. B. Barrow, and Mary Andreleita Walker,
`Faegre & Benson, LLP; and Matthew J. Oppenheim, Oppenheim Group, LLP;
`counsel for Plaintiffs.
`
`Joe Sibley and K. A. D. Camara, Camara & Sibley, LLP, and Brant D. Penney and
`Garrett D. Blanchfield, Jr., Reinhardt Wendorf & Blanchfield, counsel for
`Defendant.
`
`1
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`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`________________________________________________________________
`
`CAPITOL RECORDS INC.,
`a Delaware corporation;
`SONY BMG MUSIC ENTERTAINMENT,
`a Delaware general partnership;
`ARISTA RECORDS LLC,
`a Delaware limited liability company;
`INTERSCOPE RECORDS,
`a California general partnership;
`WARNER BROS. RECORDS INC.,
`a Delaware corporation; and
`UMG RECORDINGS, INC.,
`a Delaware corporation;
`
`Plaintiffs,
`
`v.
`
`JAMMIE THOMAS‐RASSET,
`
`MEMORANDUM OF LAW & ORDER
`Civil File No. 06‐1497 (MJD/RLE)
`
`Defendant.
`________________________________________________________________
`
`Andrew B. Mohraz, David A. Tonini, and Timothy M. Reynolds, Holme Roberts
`& Owen, LLP; Felicia J. Boyd, Kara L. B. Barrow, and Mary Andreleita Walker,
`Faegre & Benson, LLP; and Matthew J. Oppenheim, Oppenheim Group, LLP;
`counsel for Plaintiffs.
`
`Joe Sibley and K. A. D. Camara, Camara & Sibley, LLP, and Brant D. Penney and
`Garrett D. Blanchfield, Jr., Reinhardt Wendorf & Blanchfield, counsel for
`Defendant.
`
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 2 of 38
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`________________________________________________________________
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`I.
`
`INTRODUCTION
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`This matter is before the Court on Defendant’s Motion for a New Trial,
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`Remittitur, and to Alter or Amend the Judgment [Docket No. 344] and Plaintiffs’
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`Motion to Amend Judgment. [Docket No. 342]
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`II.
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`SUMMARY OF THE COURT’S OPINION
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`After long and careful deliberation, the Court grants in part and denies in
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`part Thomas‐Rasset’s motion and remits the damages award to $2,250 per song –
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`three times the statutory minimum. The need for deterrence cannot justify a $2
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`million verdict for stealing and illegally distributing 24 songs for the sole purpose
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`of obtaining free music. Moreover, although Plaintiffs were not required to
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`prove their actual damages, statutory damages must still bear some relation to
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`actual damages.
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`The Court has labored to fashion a reasonable limit on statutory damages
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`awards against noncommercial individuals who illegally download and upload
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`music such that the award of statutory damages does not veer into the realm of
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`gross injustice. Finding a precise dollar amount that delineates the border
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`between the jury’s wide discretion to calculate its own number to address
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`Thomas‐Rasset’s willful violations, Plaintiffs’ far‐reaching, but nebulous
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`damages, and the need to deter online piracy in general and the outrageousness
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`of a $2 million verdict is a considerable task. The Court concludes that setting the
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`limit at three times the minimum statutory damages amount in this case is the
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`most reasoned solution.
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`This award constitutes the maximum amount a jury could reasonably
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`award to both compensate Plaintiffs and address the deterrence aspect of the
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`Copyright Act. This reduced award is significant and harsh. It is a higher
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`award than the Court might have chosen to impose in its sole discretion, but the
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`decision was not entrusted to this Court. It was the jury’s province to determine
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`the award of statutory damages and this Court has merely reduced that award to
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`the maximum amount that is no longer monstrous and shocking. Plaintiffs have
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`seven days from the date of this Order to decide whether to accept the remittitur
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`or request a new trial on the issue of damages.
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`The Court denies Thomas‐Rasset’s motion for a new trial based on the
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`admission of evidence collected by MediaSentry. It further denies her motion for
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`a new trial based on Plaintiffs’ failure to produce certified copies of the sound
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`recordings deposited with the Copyright Office.
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`Finally, the Court grants Plaintiffs’ request to amend the Judgment to
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`include a permanent injunction.
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`III. BACKGROUND
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`Plaintiffs are recording companies that owned or controlled exclusive
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`rights to copyrights in sound recordings, including 24 at issue in this lawsuit. On
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`April 19, 2006, Plaintiffs filed a Complaint against Defendant Jammie Thomas‐
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`Rasset alleging that she infringed Plaintiffs’ copyrighted sound recordings
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`pursuant to the Copyright Act, 17 U.S.C. §§ 101, 106, 501‐505, by illegally
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`downloading and distributing the recordings via the online peer‐to‐peer file
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`sharing application known as Kazaa. Plaintiffs sought injunctive relief, statutory
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`damages, costs, and attorney fees.
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`Trial on this matter began on October 2, 2007. On October 4, 2007, the jury
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`found that Thomas‐Rasset had willfully infringed all 24 of Plaintiffs’ sound
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`recordings at issue and awarded Plaintiffs statutory damages in the amount of
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`$9,250 for each willful infringement. [Docket No. 100] The total damages award
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`was $222,000. On October 5, the Court entered judgment on the jury’s verdict.
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`[Docket No. 106]
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`On October 15, Defendant filed a Motion for New Trial, or in the
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`Alternative, for Remittitur, based solely on the issue of the constitutionality of the
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`Copyright Act’s statutory damages provision in the case. [Docket No. 109] On
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`September 24, 2008, the Court vacated the verdict and granted a new trial based
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`on its conclusion that it had erred in giving Jury Instruction No. 15, which
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`addressed the existence of a making‐available right. [Docket No. 197] The Court
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`made no findings regarding the constitutionality of the damages award.
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`The second trial of this matter began on June 15, 2009. On June 18, 2009,
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`the jury returned a verdict finding that Thomas‐Rasset had willfully infringed all
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`24 sound recordings and awarding statutory damages in the amount of $80,000
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`for each song, for a total verdict of $1,920,000. [Docket No. 336] On June 19,
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`2009, the Court entered judgment on the jury’s verdict. [Docket No. 338]
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`Now, Thomas‐Rasset requests that the Court set aside the award of
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`statutory damages and provides three alternatives: 1) the statutory damages
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`provision of the Copyright Act, as applied to Thomas‐Rasset, violates the Due
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`Process Clause of the U.S. Constitution; therefore, Plaintiffs must accept a $0
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`verdict; 2) the jury’s application of the statutory damages provision of the
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`Copyright Act is excessive and shocking so the Court should remit the verdict to
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`the minimum statutory damages of $750 per sound recording infringed; or 3) the
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`jury’s application of the statutory damages provision of the Copyright Act is
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`excessive and shocking so the Court should grant a new trial. She also requests a
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`new trial on the ground that there is insufficient evidence to sustain the verdict
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`because the evidence collected by MediaSentry should not have been admitted at
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`trial. Finally, she asserts that the Court erred in permitting Plaintiffs to proceed
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`without producing certified copies of the sound recordings deposited with the
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`Copyright Office.
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`Plaintiffs request that the Court amend the June 19, 2009 Judgment to
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`include a permanent injunction.
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`IV. DISCUSSION
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`A.
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`Remittitur
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`1.
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`Standard for Remittitur
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`“[A] district court should order remittitur only when the verdict is so
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`grossly excessive as to shock the conscience of the court. A verdict is not
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`considered excessive unless there is plain injustice or a monstrous or shocking
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`result.” Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th
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`Cir. 2003) (citations omitted). When deciding a motion for a new trial or
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`remittitur, the Court can rely on its own reading of all of the trial evidence
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`presented. Schaefer v. Spider Staging Corp., 275 F.3d 735, 738 (8th Cir. 2002).
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`The scope of review of a district court’s damage award is extremely narrow
`and the district court’s award may not be reversed except for a manifest
`abuse of discretion. In determining whether the trial court abused its
`discretion in ordering a remittitur, [the appellate court will] analyze
`whether the remittitur was ordered for an amount less than the jury could
`reasonably find.
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`Taylor v. Otter Tail Corp., 484 F.3d 1016, 1019 (8th Cir. 2007) (citations omitted).
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`2. Whether the Court Has the Power to Remit Statutory
`Damages Awards
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`Plaintiffs argue that this Court does not have the power to remit an award
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`of statutory damages. They note that the Supreme Court has held that “the
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`Seventh Amendment provides a right to a jury trial on all issues pertinent to an
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`award of statutory damages under § 504(c) of the Copyright Act, including the
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`amount itself.” Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355
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`(1998). Plaintiffs conclude that the jury, alone, has the authority to determine the
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`amount of statutory damages within the statutory range.
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`The Court is hesitant to interfere with the jury’s role in determining the
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`proper amount of damages. And the Court is cognizant that Congress chose the
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`range of statutory damages available for copyright infringement, within which
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`the jury’s decisionmaking was bounded. However, despite the Court’s
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`reluctance to interfere, there is no authority for Plaintiffs’ assertion that the Court
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`does not have the power to remit an award of statutory damages.
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`Moreover, the fact that Plaintiffs have a Seventh Amendment right to a
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`jury trial regarding damages under the Copyright Act does not prevent the Court
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`from ordering remittitur. Rather, the Seventh Amendment merely requires that,
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`if this Court does order remittitur, it also offer Plaintiffs the option of choosing to
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`reject the remittitur and exercise their right to a new jury trial solely on the issue
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`of damages. Corpus v. Bennett, 430 F.3d 912, 917 (8th Cir. 2005); Thorne v. Welk
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`Inv., Inc., 197 F.3d 1205, 1212 (8th Cir. 1999).
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`3. Whether the Award Is Grossly Excessive
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`a.
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`Statutory Damages Framework
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`The Copyright Act provides that “an infringer of copyright is liable for
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`either . . . the copyright owner’s actual damages and any additional profits of the
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`infringer . . . or . . . statutory damages.” 17 U.S.C. § 504(a).
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`The statute further provides:
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`(1) Except as provided by clause (2) of this subsection, the copyright
`owner may elect, at any time before final judgment is rendered, to
`recover, instead of actual damages and profits, an award of statutory
`damages for all infringements involved in the action, with respect to
`any one work, for which any one infringer is liable individually . . .
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`in a sum of not less than $750 or more than $30,000 as the court
`considers just. For the purposes of this subsection, all the parts of a
`compilation or derivative work constitute one work.
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`(2) In a case where the copyright owner sustains the burden of
`proving, and the court finds, that infringement was committed
`willfully, the court in its discretion may increase the award of
`statutory damages to a sum of not more than $150,000.
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`17 U.S.C. § 504(c).
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`Congress last amended the statutory damages section of the Copyright Act
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`in 1999, significantly increasing the minimum and maximum statutory awards to
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`their current levels. Congress intended the statutory damages to be
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`“substantially” higher than actual damages:
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`Courts and juries must be able to render awards that deter others
`from infringing intellectual property rights. It is important that the
`cost of infringement substantially exceed the costs of compliance, so
`that persons who use or distribute intellectual property have a
`strong incentive to abide by the copyright laws.
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`H.R. Rep. No. 106‐216, at 6 (1999).
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`The statutory damages provision of the Copyright Act has both deterrent
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`and compensatory components. Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d
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`635, 643 (8th Cir. 1996). If a plaintiff requests that a jury decide the amount of
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`statutory damages, then “a jury must determine the actual amount of statutory
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`damages under § 504(c).” Feltner, 523 U.S. at 355.
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`A plaintiff can recover statutory damages even though it did not submit
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`evidence regarding actual damages, such as lost profits:
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`[S]tatutory damages for copyright infringement are not only
`“restitution of profit and reparation for injury,” but also are in the
`nature of a penalty, “designed to discourage wrongful conduct.”
`“The discretion of the court is wide enough to permit a resort to
`statutory damages for such purposes. Even for uninjurious and
`unprofitable invasions of copyright the court may, if it deems it just,
`impose a liability within statutory limits to sanction and vindicate
`the statutory policy.”
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`Cass County Music Co., 88 F.3d at 643 (quoting F.W. Woolworth Co. v.
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`Contemporary Arts, Inc., 344 U.S. 228, 233 (1952)) (footnote and emphasis
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`omitted).
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`b.
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`Relationship Between Statutory Damages and Actual
`Damages
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`Thomas‐Rasset argues that the ratio of the statutory damages award to
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`actual damages in this case, when measured in songs, is 1:62,015. She bases this
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`calculations on a cost of $1.29 per song online. She further argues that, based on
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`a cost of $15 per album, the ratio is still 1:5,333. (Alasdair McMullan, the
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`executive vice president of legal affairs for EMI Music North America, testified
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`that Richard Marx’s “Now and Forever” probably retailed for $1.29 on iTunes
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`and the album probably cost less than $20.00 in a retail store.) Thomas‐Rasset
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`concludes that these ratios are monstrous and shocking.
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`Plaintiffs accurately point out that, because they chose to seek statutory
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`damages rather than actual damages, they were not required to present proof of
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`the actual damages caused by Thomas‐Rasset’s infringement. See, e.g., Cass
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`County Music Co., 88 F.3d at 643 (“[S]tatutory damages are by definition a
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`substitute for unproven or unprovable actual damages.”); Lowry’s Reports, Inc.
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`v. Legg Mason, Inc., 302 F. Supp. 2d 455, 459 (D. Md. 2004) (“Because statutory
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`damages are an alternative to actual damages, there has never been a
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`requirement that statutory damages must be strictly related to actual injury.”)
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`(citations omitted). However, because statutory damages have, in part, a
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`compensatory purpose, “assessed statutory damages should bear some relation
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`to the actual damages suffered.” Bly v. Banbury Books, Inc., 638 F. Supp. 983, 987
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`(E.D. Pa. 1986).
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`c.
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`Factual Support for Actual Damages Inflicted
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`Thomas‐Rasset asserts that, at most, she was a single mother who merely
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`downloaded and shared music when she had already lawfully bought CDs of
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`much of that music and had no commercial motive to infringe. Defendant notes
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`that, if her conduct caused any harm, it was only economic harm. She caused no
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`danger to the safety of others. Additionally, Thomas‐Rasset argues that the
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`victims of her conduct were not vulnerable – they are the largest recording
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`companies in the United States.
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`Plaintiffs contend that their actual damages were far greater than the $1.29
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`cost of Richard Marx’s “Now and Forever” on iTunes or the less than $20 cost of
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`an album containing that song. They note that the evidence showed that
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`Thomas‐Rasset willfully infringed 24 of their copyrighted sound recordings. The
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`songs, along with almost 1,700 others, were in Thomas‐Rasset’s directory, which
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`she shared with the millions of users of the Kazaa network. Therefore, the songs
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`at issue were accessible for free downloading by millions of Kazaa users who
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`could subsequently share them with others. Plaintiffs argue that the valuation of
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`actual damages cannot be limited to the harm only caused by reproducing 24
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`songs.
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`Plaintiffs further note that Gary Wade Leak, the deputy general counsel for
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`Sony Music Entertainment, testified that, in the case of an illegal download, the
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`damage to the recording company is the loss of the sale of that particular song,
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`but in the case of an illegal online distribution, the recording company has lost
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`exponential sales for that song. He testified that, generally, online piracy has
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`caused the recording industry to lose billions of dollars in the last several years
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`and has caused the layoffs of thousands of employees.
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`Leak further testified that the cost of obtaining a license to engage in
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`Thomas‐Rasset’s conduct would be prohibitive. Specifically, he testified that, in
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`order to obtain an unlimited license to distribute music online for free, a person
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`would have to buy the entire recording company and shut it down. As
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`Defendant notes, Leak could not quantify the harm caused to Sony by Thomas‐
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`Rasset, because he could not determine how many times the recordings were
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`downloaded from her share file by other Kazaa users. Thomas‐Rasset argues
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`that it would be unconstitutional to punish her for the harms caused by illegal
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`music downloading in general.
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`d.
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`Evidence of Willfulness and the Need for Deterrence
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`As the Court instructed the jury, factors other than the damages caused
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`and gains obtained by the defendant’s infringement are relevant to the decision
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`of the proper amount of statutory damages. Facts that go to the deterrence aspect
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`of statutory damages, such as a defendant’s willfulness or innocence, and
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`incorrigibility, are also relevant. Here, the jury found that Thomas‐Rasset acted
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`willfully. Thomas‐Rasset testified that she had studied Napster in college and
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`that, while still in college, she later learned that copying and distributing
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`copyrighted music recordings over the Internet was against the law. Therefore,
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`she was aware that downloading songs off of and distributing songs via Kazaa
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`was illegal.
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`Moreover, Thomas‐Rasset refused to accept responsibility for downloading
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`and distributing the infringing sound recordings. Thomas‐Rasset previously
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`provided sworn interrogatory answers that there had never been any type of
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`online media distribution on her computer in the three years before the
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`Complaint was filed and that she did not contend that anyone else was
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`responsible for the infringement. Despite never implicating others during her
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`depositions or testimony in the previous trial, in this second trial, she suddenly
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`leveled new accusations against her children and ex‐boyfriend, asserting that
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`they might have committed the infringement. Thomas‐Rasset’s refusal to accept
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`responsibility for her actions and her decision to concoct a new theory of the
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`infringement casting possible blame on her children and ex‐boyfriend for her
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`actions demonstrate a refusal to accept responsibility and raise the need for
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`strong deterrence.
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`e.
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`Need for Remittitur
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`Although Plaintiffs highlight valid reasons that Thomas‐Rasset must pay a
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`statutory damages award, these facts simply cannot justify a $2 million verdict in
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`this case. Thomas‐Rasset was not a business acting for profit. Instead, she was
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`an individual consumer illegally seeking free access to music for her own use.
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`Congress set a high maximum for statutory damages in order to ensure that
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`damages awards could be large enough to outweigh the potential gain from
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`infringing. As the Court noted in its September 2008 Order, in the case of
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`commercial actors, the potential gain in revenues is enormous and enticing to
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`potential infringers. In the case of individuals who infringe by using peer‐to‐peer
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`networks, the potential gain from infringement is access to free music, not the
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`possibility of hundreds of thousands – or even millions – of dollars in profits.
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`The need for deterrence cannot justify a $2 million verdict for stealing and
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`illegally distributing 24 songs for the sole purpose of obtaining free music.
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`Similarly, the damage to Plaintiffs cannot support this verdict. While
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`Plaintiffs were not required to prove their actual damage, the possible actual
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`damage weighs in the Court’s analysis. One purpose of statutory damages under
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`the Copyright Act is to act as a substitute for actual damages when they are
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`difficult to calculate. However, as the Court has already explained, statutory
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`damages must still bear some relation to actual damages.
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`It may be impossible to calculate how many other computer users
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`committed infringement with the illegal copies of works accessed from Thomas‐
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`Rasset or the amount of damage that their access caused. Additionally, trial
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`testimony made clear that detecting online piracy and identifying infringers on
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`peer‐to‐peer networks is difficult and costly. The recovery to Plaintiffs must be
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`sufficient to justify their expenditure in pursuing infringers.
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`All of the potential ills caused by unauthorized peer‐to‐peer networking
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`and illegal downloading are relevant to the damages award. The Court does not
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`discount that, in aggregate, illegal downloading has caused serious, widespread
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`harm to the recording industry. These facts justify a statutory damages award
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`that is many multiples higher than the simple cost of buying a CD or legally
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`purchasing the songs online.
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`The Court has considered the strong need for deterrence in this particular
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`case, the difficulty in quantifying the damages caused by the chain effect of
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`Thomas‐Rasset’s distribution of copyrighted sound recordings over the Internet,
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`the large scale damages caused by online piracy in aggregate, and the substantial
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`impediments to identifying and pursuing infringers. However, despite the
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`combination of these justifications and the Court’s deference to the jury’s verdict,
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`$2 million for stealing 24 songs for personal use is simply shocking. No matter
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`how unremorseful Thomas‐Rasset may be, assessing a $2 million award against
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`an individual consumer for use of Kazaa is unjust. Even Plaintiffs admit that
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`Thomas‐Rasset is unlikely to ever be able to pay such an award. Having
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`determined that the current verdict is so shocking that it must be remitted, the
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`Court next faces the task of assessing the proper amount of remittitur.
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`4.
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`Proper Amount of Remittitur
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`Thomas‐Rasset requests that the Court remit the statutory damages award
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`to $18,000, which consists of the statutory minimum, $750, per song. Plaintiffs
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`assert that there is no basis for remittitur. However, they represent that they will
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`consider a remittitur, so long as it takes into account Defendant’s willful conduct,
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`the substantial damage cause by her actions, and the significant number of
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`copyright sound recordings upon which she infringed.
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`a.
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`Standard for Determining Proper Amount of
`Remittitur
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`The Court’s task is not to choose the statutory damages amount it thinks
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`would be most appropriate in this matter. Rather, under the “maximum
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`recovery rule,” the Court reduces the damages to the “maximum amount the jury
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`could properly have awarded.” K‐B Trucking Co. v. Riss Int’l Corp., 763 F.2d
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`1148, 1163 (10th Cir. 1985) (citation omitted), cited with approval in In re
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`Knickerbocker, 827 F.2d 281, 289 n.6 (8th Cir. 1987). See also Stogsdill v.
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`Healthmark Partners, L.L.C., 377 F.3d 827, 834 (8th Cir. 2004) (“When a jury
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`awards excessive damages, remittitur to the maximum amount proved is an
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`appropriate remedy.”) (citation omitted); Ogilvie v. Fotomat Corp., 641 F.2d 581,
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`586 n.13 (8th Cir. 1981) (holding remittitur to “the maximum amounts that would
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`be sustained by [plaintiffs’] proof” is the proper standard) (footnote omitted);
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`Slatton v. Martin K. Eby Constr. Co., Inc., 506 F.2d 505, 509 (8th Cir. 1974)
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`(upholding district court’s remittitur to $50,000 as “the maximum limit
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`sustainable on a jury verdict even though it thought that $15,000 to $20,000 was
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`fair and reasonable compensation” because remittitur was not “ordered for an
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`amount less than the jury could reasonably find”). The Court will not substitute
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`its judgment for the judgment of the jury. Rather, it will remit the award to the
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`maximum amount sustainable by the record, so that the statutory damages
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`award is no longer shocking or monstrous.
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`18
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 19 of 38
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`b.
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`Evidence of Other Jury Verdicts
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`Plaintiffs argue that the Court should look to other jury verdicts in similar
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`cases to determine the amount of the remittitur. They point out that, in the first
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`trial in this case, the jury awarded $9,250 for each of the 24 infringed works. In
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`the recent similar trial in the District of Massachusetts, the jury awarded $22,500
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`for each of 30 works infringed. (Sony BMG Music Entm’t v. Tenenbaum, Case
`
`No. 07‐cv‐11446‐NG, July 31, 2009, Jury Verdict.)
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`In evaluating the propriety of remittitur, the Eighth Circuit has held that
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`comparing jury verdicts for similar injuries in different cases is “not greatly
`
`helpful because each case must be evaluated as an individual one, within the
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`framework of its distinctive facts.” Vanskike v. Union Pac. R.R. Co., 725 F.2d
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`1146, 1150 (8th Cir. 1984) (citation omitted). Additionally, “[e]ach case is
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`evaluated by a different, randomly selected group of individual jurors.” Id. In
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`this case, the previous jury award was vacated by this Court and, in the
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`Tenenbaum case, the court has not yet decided the pending motion to reduce the
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`damages award. Therefore, although the Court is aware of these other two
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`awards, it does not consider them to carry weight in its remittitur analysis.
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`c.
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`Request for Reduction to the Statutory Minimum
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`19
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 20 of 38
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`Defendant advocates that the Court remit the damages award to the
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`statutory minimum. Even statutory damages of $750 per sound recording
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`initially appears surprisingly high when the retail cost of such downloads is
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`considered. However, the Court declines Thomas‐Rasset’s request to remit the
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`award to the statutory minimum.
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`Congress set the statutory range for copyright infringement and evinced a
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`clear intent that each work willfully infringed justifies at least $750 in statutory
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`damages. Reducing the statutory damages award to that minimum amount
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`would still result in a total damages award of $18,000. An award of $750 per
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`song infringed would constitute a substantial amount to a noncommercial
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`consumer and would cost more than forty times the cost of a CD. Such an award
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`would uphold Congress’s intent “that the cost of infringement substantially
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`exceed the costs of compliance, so that persons who use or distribute intellectual
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`property have a strong incentive to abide by the copyright laws.” H.R. Rep.
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`106‐216, at 6.
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`However, Congress has set the floor of $750 per sound recording infringed,
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`even without a finding of willfulness. Some increase in the damages awarded is
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`reasonable in a case of willful infringement. The jury explicitly found that
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`20
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`
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 21 of 38
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`Thomas‐Rasset willfully infringed on Defendants’ copyrights. The statute
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`demonstrates Congress’s intent that willful infringers can be – but do not have to
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`be – treated more harshly that non‐willful infringers.
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`Additionally, Thomas‐Rasset lied on the witness stand by denying
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`responsibility for her infringing acts and, instead, blamed others, including her
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`children, for her actions. A reasonable jury could have used the facts in this case
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`to conclude that additional deterrence was required.
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`The Court further notes that simply comparing the amount of the award
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`with the cost of a song on iTunes or a CD is inadequate – the damages caused to
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`Plaintiffs are far ranging and difficult to calculate. A reasonable jury could also
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`have used Leak’s testimony to conclude that Thomas‐Rasset’s infringement
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`posed great harm to the recording industry because, by distributing the songs
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`online for free, she exponentially increased their damages. Additionally,
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`Plaintiffs elected to recover statutory damages in lieu of actual damages.
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`Therefore, it would be inappropriate to limit Plaintiffs’ recovery based on a strict
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`multiple of Plaintiffs’ actual damages. In fact, even if the Court were inclined to
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`attempt such a calculation, it would surely fail: the damages caused by
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`Thomas‐Rasset’s infringement cannot be calculated with precision. Moreover,
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`21
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 22 of 38
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`unlike actual damages, statutory damages can include a deterrence component,
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`which can justify a higher award.
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`Based on all of these factors, the jury could reasonably award damages
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`above the statutory minimum of $750 per song in order to achieve deterrence and
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`compensate for large, uncertain damages. The Court must remit the award to the
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`highest part of the range that the jury could reasonably have chosen. Therefore,
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`the Court concludes that remittitur to the statutory minimum is unsupportable.
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`d.
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`Remittitur to Three Times the Statutory Minimum
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`The Court concludes that remittitur to $2,250 – 3 times the statutory
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`minimum – per sound recording infringed is appropriate. There is a broad legal
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`practice of establishing a treble award as the upper limit permitted to address
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`willful or particularly damaging behavior. Federal statutes allow for an increase
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`in statutory damages, up to triple statutory damages, when the statutory
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`violation is willful or demonstrates a particular need for deterrence. See, e.g.,
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`Digital Millennium Copyright Act, 17 U.S.C. § 1203(c)(3) (providing that “the
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`court may increase the award of damages up to triple the amount that would
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`otherwise be awarded” if the person committed the violation “within 3 years
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`after a final judgment was entered against the person for another such
`
`22
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`
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 23 of 38
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`violation”); Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(3), (c)(5)
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`(permitting court to increase statutory damages award “to an amount equal to
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`not more than 3 times” the statutory damages amount of $500, for willful or
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`knowing violations). In these other contexts, treble statutory damages have been
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`set as the permissible outer limit of statutory damages awards, even in the face of
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`willful behavior.
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`Other statutes, while not trebling statutory damages, allow tripling of a
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`dollar amount other than actual damages, such as the cost of settlement service,
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`the defendant’s profits, the amount of a fraudulent claim, or a month’s rent. See,
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`e.g., Real Estate Settlement Procedures Act, 12 U.S.C. § 2607(d)(2) (“Any person
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`or persons who violate the prohibitions or limitations of this section shall be
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`jointly and severally liable to the person or persons charged for the settlement
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`service involved in the violation in an amount equal to three times the amount of
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`any charge paid for such settlement service.”); Lanham Act, 15 U.S.C. § 1117(b)
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`(providing that, under certain circumstances involving the use of a counterfeit
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`mark or designation, “the court shall, unless the court finds extenuating
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`circumstances, enter judgment for three times such profits or damages,
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`whichever amount is greater”); Civil Monetary Penalties Law, 42 U.S.C.
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`23
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`
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`CASE 0:06-cv-01497-MJD-LIB Document 366 Filed 01/22/10 Page 24 of 38
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`§ 1320a‐7a(a) (“In addition, such a person shall be subject to an assessment of not
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`more than 3 times the amount claimed for each such item or service in lieu of
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`damages sustained by the United States or a State agency because of such [false]
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`claim . . . .”); Mass. Gen. Laws ch. 186, § 14 (“Any person who commits any act in
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`violation of this section [by interfering with a tenant’s quiet enjoyment] shall also
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`be liable for actual and consequential damages or
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