Check out Judge Michael Davis. After the second
Jammie Thomas-Rasset case had a jury return an award of $1.92 million for her sharing of 24 songs, the judge reduced the award from $80,000 per song to three times the statutory minimum of $2,250
per song. Of course, this resulted in a wild freakout by the RIAA... and a third trial. In the third trial (just on the award amount), the jury went with $62,500 per song shared, or $1.5 million total
. Considering the massive freakout last time, you might think that Judge Davis would just be done with this, but instead, he's sticking to his guns, once again reducing the award to the same $2,250 per song
. This really makes it the third time he's overturned the jury (though, the first time was because he felt he gave improper jury instructions).
Of course, the RIAA will once again freak out and this will be appealed. The judge's ruling, though, is well worth reading, calling the jury award of $1.5 million "appalling":
The Court concludes that an 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.
This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.
He notes that, given the past experiences with this dispute, he's "loath" to do this again, but "the Constitution and justice compel the Court to act."
Judge Davis is clearly aware that the RIAA would freak out about this, and lays out, in great detail, his arguments for why the original awards are unconstitutional (as a violation of due process) and why the maximum
fine he believes is allowed under the Constitution would be the $2,250 per song he changed the award to.
The RIAA, of course, will continue to claim that the ridiculous million dollar plus awards for sharing 24-songs are perfectly appropriate. They'll claim, as they have in the past, that the fact that multiple juries came up with this amount shows that the public agrees such ridiculous fines are normal. As per usual with the RIAA, they're being misleading. The reason that juries reach such disproportionate awards is because of the way the choices are framed
to the jury. There are all sorts of studies on how framing influences a jury, and how juries don't actually consider the proportional response of the offense to the punishment.
There's one other interesting bit in the ruling that won't get much attention. That is that the RIAA asked for an injunction barring Thomas-Rasset from infringing any further, and the court grants it... in part. It's the part that it doesn't grant, which is interesting. The RIAA asked for the court to say Thomas-Rasset should be barred from "making available" any copyrighted works via file sharing programs, but the court, correctly (despite the RIAA's long-term effort to pretend otherwise), points out that there is no "making available" right within copyright law. The Court is short and sweet on that point:
Plaintiffs further request that the Court include language in the injunction barring Defendant from making any of Plaintiffs’ sound recordings available for distribution to the public. Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs’ copyrighted works available on a peer-to-peer network, she will have completed all of the steps necessary for her to engage in the same illegal distribution of Plaintiffs’ works for which she has already been found liable. Because the Court has held that the Copyright Act does not provide a making-available right, it will not enjoin Thomas-Rasset from making the copyrighted sound recordings available to the public.
While there's nothing really new here, it's nice to see that point reinforced once again. Making available, by itself, is not copyright infringement, despite the industry's attempts to portray it as such.