Don't Stop Believin' in Copyright Infringement Damages

By Robyn Hagan Cain on September 12, 2012 | Last updated on March 21, 2019

In Jonathan Larson's Tony-winning musical Rent, we learned that a year is 525,600 minutes. That number was repeated throughout the song "Seasons of Love," which lasts for approximately 3 minutes, (or 0.00000571 years). And if you illegally download "Seasons of Love," those 3 minutes could cost you $9,250, (or $51.38 per second).

The Eighth Circuit Court of Appeals ruled today that Jammie Thomas-Rasset is on the line for $220,000 for peer-to-peer file sharing. Thomas-Rasset shared 24 songs on Kazaa, including Def Leppard's "Pour Some Sugar on Me," Journey's "Don't Stop Believin' and Green Day's "Basket Case" The Wall Street Journal reports. Now she'll pay a six-figure sum for songs she could have heard second-rate cover bands play for free at almost any bar or frat party

So why did this case need to be resolved in an appellate court?

There was a complicated procedural history involving three jury trials. After a first jury found Thomas-Rasset liable for willful copyright infringement and awarded damages of $222,000, the district court granted a new trial on the ground that the jury instructions incorrectly provided that the Copyright Act forbids making sound recordings available for distribution on a peer-to-peer network, regardless of whether there is proof of "actual distribution."

A second jury found Thomas-Rasset liable for willful copyright infringement under a different instruction, and awarded statutory damages of $1,920,000. The district court remitted the award to $54,000, and the companies opted for a new trial on damages. A third jury awarded statutory damages of $1,500,000, but the district court ultimately reduced the verdict because "the maximum amount permitted by the Due Process Clause of the Fifth Amendment was $54,000."

The court also enjoined Thomas-Rasset from taking certain actions with respect to copyrighted recordings owned by the recording companies.

The companies appealed, objecting to the district court's ruling on damages, and seeking the original $222,000 judgment. They also asked for a broader injunction barring Thomas-Rasset from making any of their sound recordings available to the public.

Tuesday, the Eighth Circuit Court of Appeals remanded the case with directions to enter a judgment for damages in the amount of $222,000, and to include an injunction that precludes Thomas-Rasset from making any of the recordings available for distribution to the public through an online media distribution system.

Is the recording industry going to target your music-loving clients for sharing 24 songs? Probably not. (Thomas-Rasset was initially accused of sharing 1,700 copyrighted songs, according to CNET.) What's important here is that copyright infringement damages can be steep. If you represent a client in a similar file sharing case, you may want to consider a settlement.

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