After Judge Zobel Slams Tenenbaum, Eighth Circuit Whacks Thomas-Rasset

by Lee Gesmer on September 12, 2012

In late August Massachusetts U.S. District Court Judge Rya Zobel refused to remit $675,000 in statutory copyright damages that a jury awarded (long ago, pre-appeal) against Joel Tenenbaum, and held that the award did not violate Tenenbaum’s constitutional rights under the Due Process Clause.  (Blog post on Tenenbaum here).

Yesterday, in a case involving essentially identical issues, the 8th Circuit affirmed a $220,000 jury verdict against Jamie Thomas-Rasset.

Ms. Thomas-Rasset has had a rough six years since she was first sued for downloading 24 copyrighted songs. She has been through three jury trials, resulting in verdicts of $220,000, $1.92 million and $1.5 million.

The federal district court trial judge in Minneapolis seemed to be sympathetic to her plight, setting-aside or reducing the verdict each time. However, the recording companies persisted, and it appears that her luck may have finally run out. The Eighth Circuit Court of Appeals ordered the trial judge to enter judgment against Ms. Thomas-Rasset in the amount of the original, $220,000 verdict (as requested by the record companies). Importantly, the court rejected Thomas-Rasset’s claim that a statutory damages award of $9,166 per song violated the Due Process Clause.

Just as importantly, the court declined to be the first federal circuit court to rule on whether making sound recordings available for distribution on a peer-to-peer network (as Ms. Thomas-Rasset did) violates a copyright owners’ exclusive “distribution” right under section 106(3) of the Copyright Act, regardless of whether actual distribution (in this case downloading by third parties) has been shown.

Unless Ms. Thomas-Rasset can persuade the Supreme Court to take review (or the Eighth Circuit to reconsider it en banc), this case is over. Whether the record companies will recover any part of their judgment is an open question, given that Ms. Thomas-Rasset works as a natural resources coordinator for the Mille Lacs Band of Ojibwe Indians and reportedly has been represented pro bono in this long-running case. Nevertheless, in this case, and in the Tenenbaum case, they have made their point. However, it comes a bit late, given that the record company downloader suits have slowed, if not ceased altogether.

Meanwhile, the decision doesn’t bode well for Joel Tenenbaum, who, presumably, is weighing a Due Process Clause appeal of Judge Rya Zobel’s August decision in his case.

Capitol Records Inc et al v. Thomas-Rasset (8th Cir., September 11, 2012)

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