                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2820
                        ___________________________

  Capitol Records, Inc.; Sony BMG Music Entertainment; Arista Records LLC;
    Interscope Records; Warner Bros. Records Inc.; UMG Recordings, Inc.,

                      lllllllllllllllllllll Plaintiffs - Appellants,

                                           v.

                              Jammie Thomas-Rasset,

                      lllllllllllllllllllll Defendant - Appellee,

                             United States of America,

                   lllllllllllllllllllllIntervenor below - Appellee.

                             ------------------------------

             Motion Picture Association of America, Incorporated,

                 lllllllllllllllllllllAmicus on Behalf of Appellant,

Electronic Frontier Foundation; Internet Archive; American Library Association;
Association of Research Libraries; Association of College and Research Libraries;
                               Public Knowledge,

                   lllllllllllllllllllllAmici on Behalf of Appellee.
                       ___________________________

                               No. 11-2858
                       ___________________________

 Capitol Records, Inc.; Sony BMG Music Entertainment; Arista Records LLC;
   Interscope Records; Warner Bros. Records Inc.; UMG Recordings, Inc.,

                     lllllllllllllllllllll Plaintiffs - Appellees,

                                          v.

                            Jammie Thomas-Rasset,

                    lllllllllllllllllllll Defendant - Appellant,

                           United States of America,

                  lllllllllllllllllllllIntervenor below - Appellee.

                            ------------------------------

             Motion Picture Association of America, Incorporated,

                 lllllllllllllllllllllAmicus on Behalf of Appellee,

American Library Association; Association of Research Libraries; Association of
   College and Research Libraries; Public Knowledge; Electronic Frontier
                       Foundation; Internet Archive,

                 lllllllllllllllllllllAmici on Behalf of Appellant.
                                      ____________

                   Appeal from United States District Court
                  for the District of Minnesota - Minneapolis
                                 ____________



                                         -2-
                              Submitted: June 12, 2012
                              Filed: September 11, 2012

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       This appeal arises from a dispute between several recording companies and
Jammie Thomas-Rasset. There is a complicated procedural history involving three
jury trials, but for purposes of appeal, it is undisputed that Thomas-Rasset willfully
infringed copyrights of twenty-four sound recordings by engaging in file-sharing on
the Internet. After a first jury found Thomas-Rasset liable 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 ruled that the maximum amount permitted
by the Due Process Clause of the Fifth Amendment was $54,000 and reduced the
verdict accordingly. The court also enjoined Thomas-Rasset from taking certain
actions with respect to copyrighted recordings owned by the recording companies.

       The companies appeal two aspects of the remedy ordered by the district court.
They object to the district court’s ruling on damages, and they seek an award of
$222,000, which was the amount awarded by the jury in the first trial. They also seek
a broader injunction that bars Thomas-Rasset from making any of their sound
recordings available to the public. For tactical reasons, the companies do not seek
reinstatement of the third jury’s award of $1,500,000. They urge instead that this

                                          -3-
court should reverse the district court’s order granting a new trial, rule that the
Copyright Act does protect a right to “making available” sound recordings, reinstate
the first jury’s award of $222,000, and direct entry of a broader injunction. In a cross-
appeal, Thomas-Rasset argues that any award of statutory damages is
unconstitutional, and urges us to vacate the award of damages altogether.

       For reasons set forth below, we conclude that the recording companies are
entitled to the remedies they seek: damages of $222,000 and a broadened injunction
that forbids Thomas-Rasset to make available sound recordings for distribution. But
because the verdicts returned by the second and third juries are sufficient to justify
these remedies, it is unnecessary for this court to consider the merits of the district
court’s order granting a new trial after the first verdict. Important though the “making
available” legal issue may be to the recording companies, they are not entitled to an
opinion on an issue of law that is unnecessary for the remedies sought or to a
freestanding decision on whether Thomas-Rasset violated the law by making
recordings available.

                                           I.

       Capitol Records, Inc., Sony BMG Music Entertainment, Arista Records LLC,
Interscope Records, Warner Bros. Records, and UMG Recordings, Inc., are recording
companies that own the copyrights to large catalogs of music recordings. In 2005,
they undertook to investigate suspected infringement of these copyrights.
MediaSentry, an online investigative firm hired by the recording companies,
discovered that an individual with the username “tereastarr” was participating in
unauthorized file sharing on the peer-to-peer network KaZaA.

       During the relevant time period, KaZaA was a file-sharing computer program
that allowed its users to search for and download specific files from other users.
KaZaA users shared files using a share folder. A share folder is a location on the

                                          -4-
user’s computer in which the user places files—such as audio or video
recordings—that she wants to make available for other users to download. KaZaA
allowed its users to access other users’ share folders, view the files in the folder, and
download copies of files from the folder.

       MediaSentry accessed tereastarr’s share folder. The investigative firm
determined that the user had downloaded copyrighted songs and was making those
songs available for download by other KaZaA users. MediaSentry took screen shots
of tereastarr’s share folder, which included over 1,700 music files, and downloaded
samples of the files. But MediaSentry was unable to collect direct evidence that other
users had downloaded the files from tereastarr. MediaSentry then used KaZaA to
send two instant messages to tereastarr, notifying the user of potential copyright
infringement. Tereastarr did not respond to the messages. MediaSentry also
determined tereastarr’s IP address, and traced the address to an Internet service
account in Duluth, Minnesota, provided by Charter Communications. MediaSentry
compiled this data in a report that it prepared for the recording companies.

       Using the information provided by MediaSentry, the recording companies,
through the Recording Industry Association of America (RIAA), issued a subpoena
to Charter Communications requesting the name of the person associated with
tereastarr’s IP address. Charter informed the RIAA that the IP address belonged to
Jammie Thomas-Rasset. The RIAA then sent a letter to Thomas-Rasset informing her
that she had been identified as engaging in unauthorized trading of music and inviting
her to contact them to discuss the situation and settle the matter. Thomas-Rasset
contacted the RIAA as directed in the letter and engaged in settlement conversations
with the organization. The parties were unable to resolve the matter.

      In 2006, the recording companies sued Thomas-Rasset, seeking statutory
damages and injunctive relief for willful copyright infringement under the Copyright
Act, 17 U.S.C. § 101 et seq. They alleged that Thomas-Rasset violated their

                                          -5-
exclusive right to reproduction and distribution under 17 U.S.C. § 106 by
impermissibly downloading, distributing, and making available for distribution
twenty-four copyrighted sound recordings.

       A jury trial was held in October 2007. At trial, Thomas-Rasset conceded that
“tereastarr” is a username that she uses regularly for Internet and computer accounts.
She admitted familiarity with and interest in some of the artists of works found in the
tereastarr KaZaA account. She also acknowledged that she wrote a case study during
college on the legality of Napster—another peer-to-peer file sharing program—and
knew that Napster was shut down because it was illegal. Nonetheless, Thomas-
Rasset testified that she had never heard of KaZaA before this case, did not have
KaZaA on her computer, and did not use KaZaA to download files. The jury also
heard evidence from a forensic investigator that Thomas-Rasset removed and
replaced the hard drive on her computer with a new hard drive after investigators
notified her of her potential infringement. The new hard drive did not contain the
files at issue.

       At the close of evidence, the district court instructed the jury that one who
reproduces or distributes a copyrighted work without license infringes the copyright.
The court’s instructions defined “reproduction” to include “[t]he act of downloading
copyrighted sound recordings on a peer-to-peer network.” The court also instructed
that the act of “making copyrighted sound recordings available for electronic
distribution on a peer-to-peer network, without license from the copyright owners,
violates the copyright owners’ exclusive right of distribution, regardless of whether
actual distribution has been shown.” The jury found Thomas-Rasset liable for willful
infringement and awarded the recording companies statutory damages of $9,250 per
work, for a total of $222,000.

      Thomas-Rasset moved for a new trial or, in the alternative, for a remittitur,
arguing that the size of the jury’s statutory damages award violated her rights under

                                         -6-
the Due Process Clause. The United States intervened to defend the constitutionality
of the statute on statutory damages, 17 U.S.C. § 504(c). The recording companies
also filed a post-trial motion, seeking to amend the judgment to include an injunction
enjoining Thomas-Rasset from infringing the recording companies’ copyrights by
“using the Internet or any online media distribution system to reproduce (i.e.,
download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’
Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the
public.”

       Several months later, the district court sua sponte raised the issue whether it
erred by instructing the jury that making sound recordings available for distribution
on a peer-to-peer network violates a copyright owners’ exclusive right to distribution,
“regardless of whether actual distribution has been shown.” The parties filed
supplemental briefs in which the recording companies defended the court’s
instruction and Thomas-Rasset argued that the court erred when it instructed the jury
on the “making available” issue. After a hearing, the district court granted Thomas-
Rasset’s motion for a new trial on this alternative ground, holding that making a work
available to the public is not “distribution” under 17 U.S.C. § 106(3). The issue
whether making copyrighted works available to the public is a right protected by
§ 106(3) has divided the district courts. Compare, e.g., Atl. Recording Corp. v.
Howell, 554 F. Supp. 2d 976, 981-84 (D. Ariz. 2008), and London-Sire Records v.
Doe 1, 542 F. Supp. 2d 153, 176 (D. Mass. 2008), with Motown Record Co. v.
DePietro, No. 04-CV-2246, 2007 WL 576284, at *3 (E.D. Pa. Feb. 16, 2007), and
Warner Bros. Records, Inc., v. Payne, No. W-06-CA-051, 2006 WL 2844415, at *3
(W.D. Tex. July 17, 2006).

      The district court convened a second trial in June 2009, at which the recording
companies produced substantially the same evidence of Thomas-Rasset’s liability.
At this trial, however, Thomas-Rasset attempted to deflect responsibility by
suggesting for the first time that her children and former boyfriend might have done

                                          -7-
the downloading and file-sharing attributed to the “terreastar” username. The court
again instructed the jury that reproduction or distribution constituted copyright
infringement. But this time, the court omitted reference to making works available
and instructed the jury that “[t]he act of distributing copyrighted sound recordings to
other users on a peer-to-peer network, without license from the copyright owners,
violates the copyright owners’ exclusive distribution right.” The jury again found
Thomas-Rasset liable for willful infringement, and awarded the recording companies
statutory damages of $80,000 per work, for a total of $1,920,000.

       Following the second trial, Thomas-Rasset filed a post-trial motion in which
she argued that any statutory damages award would be unconstitutional in her case,
but in the alternative that the court should reduce the jury’s award either through
remittitur or based on the Due Process Clause. The district court declined to rule on
the constitutional issue and instead remitted damages to $2,250 per work, for a total
of $54,000, on the ground that the jury’s award was “shocking.” The recording
companies declined the remitted award and exercised their right to a new trial on
damages.

       A third trial was held in November 2010, and the only question for the jury was
the amount of statutory damages. The jury awarded the recording companies
statutory damages of $62,500 per work, for a total of $1,500,000.

       Thomas-Rasset then moved to alter or amend the judgment, again arguing that
any statutory damages award would be unconstitutional, but alternatively that the
district court should reduce the award under the Due Process Clause. The district
court, relying in part on the now-vacated decision in Sony BMG Music Entm’t v.
Tenenbaum, 721 F. Supp. 2d 85 (D. Mass. 2010), vacated in relevant part by, 660
F.3d 487 (1st Cir. 2011), granted Thomas-Rasset’s motion and reduced the award to
$2,250 per work, for a total of $54,000. The court ruled that this amount was the
maximum award permitted by the Due Process Clause. The district court also entered

                                         -8-
a permanent injunction against Thomas-Rasset, but refused to include language
enjoining her from “making available” copyrighted works for distribution to the
public.

       The recording companies appeal the judgment of the district court, arguing that
the district court erred in (1) granting a new trial based on the “making available”
instruction in the first trial, and (2) holding that the Due Process Clause limits
statutory damages to $2,250 per infringed work. They request that we reinstate and
affirm the first jury’s $222,000 award, and remand with instructions to grant an
injunction prohibiting Thomas-Rasset from making the copyrighted works available
to the public. Thomas-Rasset cross-appeals, arguing that even an award of the
minimum statutory damages authorized by the Copyright Act would be
unconstitutional.

                                          II.

       In their brief on appeal, the record companies urge this court to review the
district court’s order granting a new trial after the first verdict. The companies argue
that the court erred by holding that an individual does not infringe a copyright
holder’s exclusive rights by making a copyrighted work available to the public
without authorization. They argue that accepting their position on that issue would
“lead to reversing the District Court’s erroneous refusal to enjoin Thomas-Rasset
from making Plaintiffs’ copyrighted works available, but also would reinstate the first
jury’s $9,250-per-work verdict,” for total damages of $222,000. Although the third
jury’s verdict awarded $62,500 per work, for a total of $1,500,000, the companies
seek only the smaller amount awarded by the first jury, because they want a ruling on
the legal issue whether making works available is part of the distribution right
protected by the Copyright Act.




                                          -9-
        In reply, Thomas-Rasset says that she has no objection to reinstatement of the
first verdict, subject to her arguments on the constitutionality of the damages. She
maintains that she still disagrees with the recording companies about the meaning of
“distribute” in the Copyright Act, 17 U.S.C. § 106(3), but she does not object to the
relief that the companies request on appeal. She now suggests that this court should
reinstate the first jury’s verdict on liability (albeit without making precedent on the
meaning of “distribute”) and then determine whether the first damages award of
$222,000 is constitutional. Thomas-Rasset is liable for willful infringement under
any of the verdicts, and it suits her fine to cap the maximum possible damages at
$222,000 rather than $1,500,000. Thomas-Rasset also offers to acquiesce in the entry
of an injunction that forbids her to make copyrighted works available for distribution.
In light of these concessions, she suggests that the issue whether making works
available is part of the distribution right protected by the Copyright Act is moot.

       Our response to these tactical maneuvers is to observe that this court reviews
judgments, not decisions on issues. Thompson v. Mo. Bd. of Prob. & Parole, 39 F.3d
186, 189 n.2 (8th Cir. 1994); see California v. Rooney, 483 U.S. 307, 310 (1987).
The record companies appeal the district court’s final judgment and seek additional
remedies that the district court refused to order. The entitlement of the companies to
these remedies—damages of $222,000 and an injunction against making copyrighted
works available to the public—are the matters in controversy. That the companies
seek these remedies with the objective of securing a ruling on a particular legal issue
does not make that legal issue itself the matter in controversy. Once the requested
remedies are ordered, the desire of the companies for an opinion on the meaning of
the Copyright Act, or for a statement that Thomas-Rasset violated the law by making
works available, is not sufficient to maintain an Article III case or controversy.
Chathas v. Local 134 IBEW, 233 F.3d 508, 512 (7th Cir. 2002); Alliance to End
Repression v. City of Chicago, 820 F.2d 873, 875-76 (7th Cir. 1987).




                                         -10-
       For the reasons set forth below, we conclude that when the district court
entered judgment after the verdict in the third trial, the court should have enjoined
Thomas-Rasset from making copyrighted works available to the public, whether or
not that conduct by itself violates rights under the Copyright Act. We also conclude
that statutory damages of at least $222,000 were constitutional, and that the district
court erred in holding that the Due Process Clause allowed statutory damages of only
$54,000. We therefore will vacate the district court’s judgment and remand with
directions to enter a judgment that includes those remedies. The question whether the
district court correctly granted a new trial after the first verdict is moot.

                                           A.

       After the third trial, the district court entered an injunction that prohibits
Thomas-Rasset from “using the Internet or any online media distribution system to
reproduce (i.e., download) any of Plaintiffs’ Recordings, or to distribute (i.e., upload)
any of Plaintiff’s Recordings.” The recording companies urged the district court to
amend the judgment to enjoin Thomas-Rasset from making any of their sound
recordings available for distribution to the public through an online media
distribution system. The district court declined to do so on the ground that the
Copyright Act does not provide an exclusive right to making recordings available.
The court further reasoned that the injunction as granted was adequate to address the
concerns of the companies. We review the grant or denial of a permanent injunction
for abuse of discretion. Fogie v. THORN Americas, Inc., 95 F.3d 645, 649 (8th Cir.
1996). “Abuse of discretion occurs if the district court reaches its conclusion by
applying erroneous legal principles or relying on clearly erroneous factual findings.”
Id.

     We conclude that the district court’s ruling was based on an error of law. Even
assuming for the sake of analysis that the district court’s ruling on the scope of the
Copyright Act was correct, a district court has authority to issue a broad injunction

                                          -11-
in cases where “a proclivity for unlawful conduct has been shown.” See McComb v.
Jacksonville Paper Co., 336 U.S. 187, 192 (1949). The district court is even
permitted to “enjoin certain otherwise lawful conduct” where “the defendant’s
conduct has demonstrated that prohibiting only unlawful conduct would not
effectively protect the plaintiff’s rights against future encroachment.” Russian Media
Grp., LLC v. Cable America, Inc., 598 F.3d 302, 307 (7th Cir. 2010) (citing
authorities). If a party has violated the governing statute, then a court may in
appropriate circumstances enjoin conduct that allowed the prohibited actions to occur,
even if that conduct “standing alone, would have been unassailable.” EEOC v.
Wilson Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994) (internal quotation
omitted).

       Thomas-Rasset’s willful infringement and subsequent efforts to conceal her
actions certainly show “a proclivity for unlawful conduct.” The recording companies
rightly point out that once Thomas-Rasset makes copyrighted works available on an
online media distribution system, she has completed all of the steps necessary for her
to engage in the same distribution that the court did enjoin. The record also
demonstrates the practical difficulties of detecting actual transfer of recordings to
third parties even when a party has made large numbers of recordings available for
distribution online. The narrower injunction granted by the district court thus could
be difficult to enforce.

       For these reasons, we conclude that the district court erred after the third trial
by concluding that the broader injunction requested by the companies was
impermissible as a matter of law. An injunction against making recordings available
was lawful and appropriate under the circumstances, even accepting the district
court’s interpretation of the Copyright Act. Thomas-Rasset does not resist expanding
the injunction to include this relief. We therefore will direct the district court to
modify the judgment to include the requested injunction.



                                          -12-
                                          B.

       On the question of damages, we conclude that a statutory damages award of
$9,250 for each of the twenty-four infringed songs, for a total of $222,000, does not
contravene the Due Process Clause. The district court erred in reducing the third
jury’s verdict to $2,250 per work, for a total of $54,000, on the ground that this
amount was the maximum permitted by the Constitution.

       The Supreme Court long ago declared that damages awarded pursuant to a
statute violate due process only if they are “so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable.” St. Louis, I.M. & S. Ry.
Co. v. Williams, 251 U.S. 63, 67 (1919). Under this standard, Congress possesses a
“wide latitude of discretion” in setting statutory damages. Id. at 66. Williams is still
good law, and the district court was correct to apply it.

       Thomas-Rasset urges us to consider instead the “guideposts” announced by the
Supreme Court for the review of punitive damages awards under the Due Process
Clause. When a party challenges an award of punitive damages, a reviewing court
is directed to consider three factors in determining whether the award is excessive and
unconstitutional: “(1) the degree of reprehensibility of the defendant’s misconduct;
(2) the disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable
cases.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); see
also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).

      The Supreme Court never has held that the punitive damages guideposts are
applicable in the context of statutory damages. See Zomba Enters., Inc. v. Panorama
Records, Inc., 491 F.3d 574, 586-88 (6th Cir. 2007). Due process prohibits excessive
punitive damages because “‘[e]lementary notions of fairness enshrined in our

                                         -13-
constitutional jurisprudence dictate that a person receive fair notice not only of the
conduct that will subject him to punishment, but also of the severity of the penalty
that a State may impose.’” Campbell, 538 U.S. at 417 (quoting Gore, 517 U.S. at
574). This concern about fair notice does not apply to statutory damages, because
those damages are identified and constrained by the authorizing statute. The
guideposts themselves, moreover, would be nonsensical if applied to statutory
damages. It makes no sense to consider the disparity between “actual harm” and an
award of statutory damages when statutory damages are designed precisely for
instances where actual harm is difficult or impossible to calculate. See Cass Cnty.
Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing
court consider the difference between an award of statutory damages and the “civil
penalties authorized,” because statutory damages are the civil penalties authorized.

       Applying the Williams standard, we conclude that an award of $9,250 per each
of twenty-four works is not “so severe and oppressive as to be wholly disproportioned
to the offense and obviously unreasonable.” 251 U.S. at 67. Congress, exercising its
“wide latitude of discretion,” id. at 66, set a statutory damages range for willful
copyright infringement of $750 to $150,000 per infringed work. 17 U.S.C. § 504(c).
The award here is toward the lower end of this broad range. As in Williams, “the
interests of the public, the numberless opportunities for committing the offense, and
the need for securing uniform adherence to [federal law]” support the
constitutionality of the award. Id. at 67.

      Congress’s protection of copyrights is not a “special private benefit,” but is
meant to achieve an important public interest: “to motivate the creative activity of
authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has
expired.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984). With the rapid advancement of technology, copyright infringement through
online file-sharing has become a serious problem in the recording industry. Evidence

                                         -14-
at trial showed that revenues across the industry decreased by fifty percent between
1999 and 2006, a decline that the record companies attributed to piracy. This decline
in revenue caused a corresponding drop in industry jobs and a reduction in the
number of artists represented and albums released. See Sony BMG Music Entm’t v.
Tenenbaum, 660 F.3d 487, 492 (1st Cir. 2011).

        Congress no doubt was aware of the serious problem posed by online copyright
infringement, and the “numberless opportunities for committing the offense,” when
it last revisited the Copyright Act in 1999. To provide a deterrent against such
infringement, Congress amended § 504(c) to increase the minimum per-work award
from $500 to $750, the maximum per-work award from $20,000 to $30,000, and the
maximum per-work award for willful infringement from $100,000 to $150,000. Id.

        Thomas-Rasset contends that the range of statutory damages established by
§ 504(c) reflects only a congressional judgment “at a very general level,” but that
courts have authority to declare it “severe and oppressive” and “wholly
disproportioned” in particular cases. The district court similarly emphasized that
Thomas-Rasset was “not a business acting for profit, but rather an individual
consumer illegally seeking free access to music for her own use.” By its terms,
however, the statute plainly encompasses infringers who act without a profit motive,
and the statute already provides for a broad range of damages that allows courts and
juries to calibrate the award based on the nature of the violation. For those who favor
resort to legislative history, the record also suggests that Congress was well aware of
the threat of noncommercial copyright infringement when it established the lower end
of the range. See H.R. Rep. 106-216, at 3 (1999), 1999 WL 446444, at *3.1

      1
          According to the House report in 1999:

      By the turn of the century the Internet is projected to have more than 200
      million users, and the development of new technology will create
      additional incentive for copyright thieves to steal protected works. The

                                         -15-
Congressional amendments to the criminal provisions of the Copyright Act in 1997
also reflect an awareness that the statute would apply to noncommercial infringement.
See No Electronic Theft (NET) Act, Pub. L. No. 105-147, § 2(a), 111 Stat. 2678
(1997); see also H.R. Rep. 105-339, at 5 (1997), 1997 WL 664424, at *5.

       In holding that any award over $2,250 per work would violate the Constitution,
the district court effectively imposed a treble damages limit on the $750 minimum
statutory damages award. The district court based this holding on a “broad legal
practice of establishing a treble award as the upper limit permitted to address willful
or particularly damaging behavior.” Any “broad legal practice” of treble damages for
statutory violations, however, does not control whether an award of statutory damages
is within the limits prescribed by the Constitution. The limits of treble damages to
which the district court referred, such as in the antitrust laws or other intellectual
property laws, represent congressional judgments about the appropriate maximum in
a given context. They do not establish a constitutional rule that can be substituted for
a different congressional judgment in the area of copyright infringement. Although
the United States seems to think that the district court’s ruling did not question the
constitutionality of the statutory damages statute, the district court’s approach in our
view would make the statute unconstitutional as applied to a significant category of
copyright infringers. The evidence against Thomas-Rasset demonstrated an


      advent of digital video discs, for example, will enable individuals to
      store far more material than on conventional discs, and at the same time,
      produce perfect secondhand copies. . . . Many computer users are either
      ignorant that copyright laws apply to Internet activity, or they simply
      believe that they will not be caught or prosecuted for their conduct.
      Also, many infringers do not consider the current copyright infringement
      penalties a real threat and continue infringing, even after a copyright
      owner puts them on notice that their actions constitute infringement and
      that they should stop the activity or face legal action. In light of this
      disturbing trend, it is manifest that Congress respond appropriately with
      updated penalties to dissuade such conduct.

                                         -16-
aggravated case of willful infringement by an individual consumer who acted to
download and distribute copyrighted recordings without profit motive. If an award
near the bottom of the statutory range is unconstitutional as applied to her
infringement of twenty-four works, then it would be the rare case of noncommercial
infringement to which the statute could be applied.

       Thomas-Rasset’s cross-appeal goes so far as to argue that any award of
statutory damages would be unconstitutional, because even the minimum damages
award of $750 per violation would be “wholly disproportioned to the offense” and
thus unconstitutional. This is so, Thomas-Rasset argues, because the damages award
is not based on any evidence of harm caused by her specific infringement, but rather
reflects the harm caused by file-sharing in general. The district court similarly
concluded that “statutory damages must still bear some relation to actual damages.”
The Supreme Court in Williams, however, disagreed that the constitutional inquiry
calls for a comparison of an award of statutory damages to actual damages caused by
the violation. 251 U.S. at 66. Because the damages award “is imposed as a
punishment for the violation of a public law, the Legislature may adjust its amount
to the public wrong rather than the private injury, just as if it were going to the state.”
Id. The protection of copyrights is a vindication of the public interest, Sony Corp. of
Am., 464 U.S. at 429, and statutory damages are “by definition a substitute for
unproven or unprovable actual damages.” Cass Cnty. Music Co., 88 F.3d at 643. For
copyright infringement, moreover, statutory damages are “designed to discourage
wrongful conduct,” in addition to providing “restitution of profit and reparation for
injury.” F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 233 (1952).

        Thomas-Rasset highlights that if the recording companies had sued her based
on infringement of 1,000 copyrighted recordings instead of the twenty-four
recordings that they selected, then an award of $9,250 per song would have resulted
in a total award of $9,250,000. Because that hypothetical award would be obviously
excessive and unreasonable, she reasons, an award of $222,000 based on the same

                                           -17-
amount per song must likewise be invalid. Whatever the constitutionality of the
hypothetical award, we disagree that the validity of the lesser amount sought here
depends on whether the Due Process Clause would permit the extrapolated award that
she posits. The absolute amount of the award, not just the amount per violation, is
relevant to whether the award is “so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable.” Williams, 251 U.S. at
67. The recording companies here opted to sue over twenty-four recordings. If they
had sued over 1,000 recordings, then a finder of fact may well have considered the
number of recordings and the proportionality of the total award as factors in
determining where within the range to assess the statutory damages. If and when a
jury returns a multi-million dollar award for noncommercial online copyright
infringement, then there will be time enough to consider it.

                                  *       *       *

        For the foregoing reasons, we conclude that the recording companies are
entitled to the remedies that they seek on appeal. The judgment of the district court
is vacated, and the case is remanded 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 plaintiffs’ recordings available for distribution to the public
through an online media distribution system.
                        ______________________________




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