Feltner v. Columbia Pictures Television, Inc.

OCTOBER TERM, 1997

															Syllabus

															FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

															No. 96-1768. Argued January 21, 1998-Decided March 31,1998

															Respondent Columbia Pictures Television, Inc., terminated
agreements licensing several television series to three television
stations owned by petitioner Feltner after the stations' royalty
payments became delinquent. When the stations continued to
broadcast the programs, Columbia sued Feltner and others for, inter alia, copyright infringement. Columbia won partial
summary judgment as to liability on its copyright infringement
claims and then exercised the option afforded by § 504(c) of the
Copyright Act of 1976 (Act) to recover statutory damages in lieu of
actual damages. The District Court denied Feltner's request for a
jury trial, and awarded Columbia statutory damages following a
bench trial. The Ninth Circuit affirmed, holding that neither §
504(c) nor the Seventh Amendment provides a right to a jury trial
on statutory damages.

															Held:

															1. There is no statutory right to a jury trial when a copyright
owner elects to recover statutory damages. Section 504(c) makes no
mention of a right to a jury trial or to juries at all, providing
instead that damages should be assessed in an amount "the court
deems just," and that in the event that "the court finds" an
infringement that is willful or innocent, "the court in its
discretion" may increase or decrease the statutory damages. The
word "court" in this context appears to mean judge, not jury. Other
remedies provisions in the Act use the term "court" in contexts
generally thought to confer authority on a judge, and the Act does
not use the term "court" when addressing awards of actual damages
and profits, see § 504(b), which generally are thought to
constitute legal relief, Dairy Queen, Inc. v. Wood, 369 U. S. 469 ,
477. Feltner's reliance on Lorillard v. Pons, 434 U. S. 575 ,
585, for a contrary interpretation is misplaced. There being no
statutory right to a jury trial on statutory damages, the
constitutional question must be addressed. See Tull v. United States, 481 U. S. 412 , 417. Pp.
345-347.

															2. The Seventh Amendment provides a right to a jury trial on all
issues pertinent to an award of statutory damages under § 504(c),
including the amount itself. Pp.347-355. 341 (a) The Seventh Amendment applies to both common-law causes of
action and to statutory actions more analogous to cases tried in
18thcentury courts of law than to suits customarily tried in courts
of equity or admiralty. Granfinanciera, S. A. v. Nordberg, 492
U. S. 33 , 42. To determine the proper analogue, this Court
examines both the nature of the statutory action and the remedy
sought. See ibid. Pp. 347-348.

															(b) There are close 18th-century analogues to § 504(c) statutory
damages actions. Before the adoption of the Seventh Amendment, the
common law and statutes in England and this country granted
copyright owners causes of action for infringement. More
importantly, copyright suits for monetary damages were tried in
courts of law, and thus before juries. There is no evidence that
the first federal copyright law, the Copyright Act of 1790, changed
this practice; and damages actions under the Copyright Act of 1831
were consistently tried before juries. The Court is unpersuaded by
Columbia's contention that, despite this undisputed historical
evidence, statutory damages are clearly equitable in nature. Pp.
348-353.

															(c) The right to a jury trial includes the right to have a jury
determine the amount of statutory damages, if any, awarded
to the copyright owner. There is overwhelming evidence that the
consistent commonlaw practice was for juries to award damages. More
specifically, this was the consistent practice in copyright cases. Tull v. United States, supra-in which this Court
determined that, although the Seventh Amendment grants a right to a
jury trial on liability for civil penalties under the Clean Water
Act, Congress could constitutionally authorize trial judges to
assess the amount of the civil penalties-is inapposite to this
case. In Tull, there was no evidence that juries
historically had determined the amount of civil penalties to be
paid to the Government, and the awarding of such penalties could be
viewed as analogous to sentencing in a criminal proceeding. Here
there is no similar analogy, and there is clear and direct
historical evidence that juries, both as a general matter and in
copyright cases, set the amount of damages awarded to a successful
plaintiff. Pp. 353-355. 106 F.3d
284 , reversed and remanded.

															THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG,
and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in
the judgment, post, p. 355. John G. Roberts, Jr., argued the cause for
petitioner.

															With him on the briefs were David G. Leitch and Jonathan S. Franklin. 342 342 FELTNER v. COLUMBIA PICTURES TELEVISION, INC. Henry J. Tashman argued the cause for
respondent.

															With him on the brief was Gregory J. Kopta. *

															JUSTICE THOMAS delivered the opinion of the Court. Section
504(c) of the Copyright Act of 1976 permits a copyright owner "to
recover, instead of actual damages and profits, an award of
statutory damages ... , in a sum of not less than $500 or more than
$20,000 as the court considers just." 90 Stat. 2585, as amended, 17
U. S. C. § 504(c)(1). In this case, we consider whether § 504(c) or
the Seventh Amendment grants a right to a jury trial when a
copyright owner elects to recover statutory damages. We hold that
although the statute is silent on the point, the Seventh Amendment
provides a right to a jury trial, which includes a right to a jury
determination of the amount of statutory damages. We therefore
reverse.

															I

															Petitioner C. Elvin Feltner owns Krypton International
Corporation, which in 1990 acquired three television stations in
the southeastern United States. Respondent Columbia Pictures
Television, Inc., had licensed several television series to these
stations, including "Who's the Boss," "Silver Spoons," "Hart to
Hart," and "T. J. Hooker." After the stations became delinquent in
making their royalty payments to Columbia, Krypton and Columbia
entered into negotiations to restructure the stations' debt. These
discussions were unavailing, and Columbia terminated the stations'
li-

															*Howard B. Abrams, pro se, filed a brief as amicus curiae urging
reversal.

															Briefs of amici curiae urging affirmance were filed for
the American Society of Composers, Authors and Publishers by I.
Fred Koenigsberg and Philip H. Schaeffer; for the
International Anticounterfeiting Coalition, Inc., by Peter W
James, Anthony M. Keats, and Larry W McFarland; and for
the National Football League et al. by Neil K. Roman and Robert A. Long, Jr. 343 cense agreements in October 1991. Despite Columbia's
termination, the stations continued broadcasting the programs.

															Columbia sued Feltner, Krypton, the stations, various Krypton
subsidiaries, and certain Krypton officers in Federal District
Court alleging, inter alia, copyright infringement arising
from the stations' unauthorized broadcasting of the programs.
Columbia sought various forms of relief under the Copyright Act of
1976 (Copyright Act), 17 U. S. C. § 101 et seq., including a
permanent injunction, § 502; impoundment of all copies of the
programs, § 503; actual damages or, in the alternative, statutory
damages, § 504; and costs and attorney's fees, § 505. On Columbia's
motion, the District Court entered partial summary judgment as to
liability for Columbia on its copyright infringement claims.1

															Columbia exercised the option afforded by § 504(c) of the
Copyright Act to recover "Statutory Damages" in lieu of actual
damages. In relevant part, § 504(c) provides:

															"STATUTORY DAMAGES- "(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 anyone work, ... in a sum of not less than
$500 or more than $20,000 as the court considers just .... "(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 $100,000. In a case
where the infringer sustains the burden of proving, and the court
finds, that such infringer was not aware and had no reason to
believe that his or her acts constituted an infringement of 1 During the course of the litigation, Columbia dropped all
claims against all parties except its copyright claims against
Feltner. 344 344 FELTNER v. COLUMBIA PICTURES TELEVISION, INC. copyright, the court [in] its discretion may reduce the award of
statutory damages to a sum of not less than $200 .... " 17 U. s. C.
§ 504(c). The District Court denied Feltner's request for a jury trial on
statutory damages, ruling instead that such issues would be
determined at a bench trial. After two days of trial, the trial
judge held that each episode of each series constituted a separate
work and that the airing of the same episode by different stations
controlled by Feltner constituted separate violations; accordingly,
the trial judge determined that there had been a total of 440 acts
of infringement. The trial judge further found that Feltner's
infringement was willful and fixed statutory damages at $20,000 per
act of infringement. Applying that amount to the number of acts of
infringement, the trial judge determined that Columbia was entitled
to $8,800,000 in statutory damages, plus costs and attorney's
fees.

															The Court of Appeals for the Ninth Circuit affirmed in all
relevant respects. Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d
284 (1997).2 Most importantly for present purposes, the court
rejected Feltner's argument that he was entitled to have a jury
determine statutory damages. Relying on Sid & Marty
Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d
1157 (CA9 1977)-which held that § 25(b) of the Copyright Act of
1909, the statutory predecessor of § 504(c), required the trial
judge to assess statutory damages 3-the Court of

															2 The Court of Appeals vacated and remanded (for further
explanation) the District Court's award of costs and attorney's
fees to Columbia. See 106 F. 3d, at 296.

															3 Under the 1909 Act, a copyright plaintiff could recover, "in
lieu of actual damages and profits, such damages as to the court
shall appear to be just, and in assessing such damages the court
may, in its discretion, allow the amounts as hereinafter stated,
but in the case of a newspaper reproduction of a copyrighted
photograph[,] such damages shall not exceed the sum of [$200] nor
be less than the sum of [$50], and such damages shall in 345 Appeals held that § 504(c) does not grant a right to a jury
determination of statutory damages. The court reasoned that "[i]f
Congress intended to overrule Krofft by having the jury
determine the proper award of statutory damages, it would have
altered" the language "as the court considers just" in § 504(c).
106 F. 3d, at 293. The Court of Appeals further concluded that the
"Seventh Amendment does not provide a right to a jury trial on the
issue of statutory damages because an award of such damages is
equitable in nature." Ibid. We granted certiorari. 521 U. S.
1151 (1997).

															II

															Before inquiring into the applicability of the Seventh
Amendment, we must "'first ascertain whether a construction of the
statute is fairly possible by which the [constitutional] question
may be avoided.'" Tull v. United States, 481 U. S. 412 , 417, n. 3
(1987) (quoting Curtis v. Loether, 415 U. S. 189 , 192, n. 6
(1974)). Such a construction is not possible here, for we cannot
discern "any congressional intent to grant ... the right to a jury
trial," 481 U. S., at 417, n. 3, on an award of statutory
damages.4

															The language of § 504(c) does not grant a right to have a jury
assess statutory damages. Statutory damages are to be assessed in
an amount that "the court considers just." § 504(c)(1). Further, in
the event that "the court finds" the infringement was willful or
innocent, "the court in its discretion" may, within limits,
increase or decrease the amount of

															no other case exceed the sum of [$5,000] nor be less than the
sum of [$250] ... " Act of Mar. 4, 1909, § 25(b), 35 Stat. 1081
(later amended and codified at 17 U. S. C. § 101(b)).

															4 The Courts of Appeals have unanimously held that § 504(c) is
not susceptible of an interpretation that would avoid the Seventh
Amendment question. See, e. g., Cass County Music Co. v. C. H. L. R., Inc., 88 F.3d
635 , 641 (CA8 1996); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d
1010 , 1014 (CA7 1991); Gnossos Music v. Mitken
Inc., 653 F.2d
117 , 119 (CA4 1981); see also Oboler v. Goldin, 714 F.2d
211 , 213 (CA2 1983); 4 M. Nimmer & D. Nimmer, Nimmer
on Copyright § 14.04[C] (1997). 346 346 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															statutory damages. § 504(c)(2). These phrases, like the entire
statutory provision, make no mention of a right to a jury trial or,
for that matter, to juries at all.

															The word "court" in this context appears to mean judge, not
jury. Cf. F. W Woolworth Co. v. Contemporary Arts,
Inc., 344 U. S.
228 , 232 (1952) (referring to the "judicial discretion"
necessary for "the court's choice between a computed measure of
damage and that imputed by" the Copyright Act of 1909 (emphasis
added)). In fact, the other remedies provisions of the Copyright
Act use the term "court" in contexts generally thought to confer
authority on a judge, rather than a jury. See, e. g., § 502
("court ... may ... grant temporary and final injunctions"); §
503(a) ("[T]he court may order the impounding ... of all copies or
phonorecords"); § 503(b) ("As part of a final judgment or decree,
the court may order the destruction or other reasonable disposition
of all copies or phonorecords"); § 505 ("[T]he court in its
discretion may allow the recovery of full costs" of litigation, and
"the court may also award a reasonable attorney's fee"). In
contrast, the Copyright Act does not use the term "court" in the
subsection addressing awards of actual damages and profits, see §
504(b), which generally are thought to constitute legal relief. See Dairy Queen, Inc. v. Wood, 369 U. S. 469 , 477 (1962)
(action for damages for trademark infringement "subject to
cognizance by a court of law"); see also Arnstein v. Porter, 154 F.2d 464, 468 (CA2 1946) (copyright action for
damages is "triable at 'law' and by a jury as of right"); Video
Views, Inc. v. Studio 21, Ltd., 925 F.2d
1010 , 1014 (CA7 1991) ("little question that the right to a
jury trial exists in a copyright infringement action when the
copyright owner endeavors to prove and recover its actual damages"); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright §
12.10[B] (1997) ("beyond dispute that a plaintiff who seeks to
recover actual damages is entitled to a jury trial" (footnotes
omitted)). 347 Feltner relies on Lorillard v. Pons, 434 U. S. 575 , 585
(1978), in which we held that the Age Discrimination in Employment
Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq., provides a statutory right to a jury trial in an action for unpaid
wages even though the statute authorizes "the court ... to grant
such legal or equitable relief as may be appropriate," § 626(b).
That holding, however, turned on two crucial factors: The ADEA's
remedial provisions were expressly to be enforced in accordance
with the Fair Labor Standards Act of 1938, as amended, 29 U. S. C.
§ 101 et seq., which had been uniformly interpreted to
provide a right to a jury trial, Lorillard v. Pons, 434 U. S., at 580-581; and the statute used the word "legal," which
we found to be a "term of art" used in cases "in which legal relief
is available and legal rights are determined" by juries, id., at
583. Section 504(c), in contrast, does not make explicit reference
to another statute that has been uniformly interpreted to provide a
right to jury trial and does not use the word "legal" or other
language denoting legal relief or rights.5

															We thus discern no statutory right to a jury trial when a
copyright owner elects to recover statutory damages. Accordingly,
we must reach the constitutional question.

															III

															The Seventh Amendment provides that "[i]n Suits at common law,
where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved .... " u. S. Const.,
Arndt. 7. Since Justice Story's time, the Court

															5 In addition, a copyright plaintiff may elect statutory damages
"at any time before final judgment is rendered." § 504(c)(1). The
parties agree, and we have found no indication to the contrary,
that election may occur even after a jury has returned a verdict on
liability and an award of actual damages. It is at least unlikely
that Congress intended that a jury, having already made a
determination of actual damages, should be reconvened to make a
determination of statutory damages. 348 348 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															has understood "Suits at common law" to refer "not merely [to]
suits, which the common law recognized among its old and
settled proceedings, but [to] suits in which legal rights
were to be ascertained and determined, in contradistinction to
those where equitable rights alone were recognized, and equitable
remedies were administered." Parsons v. Bedford, 3
Pet. 433, 447 (1830) (emphasis in original). The Seventh Amendment
thus applies not only to common-law causes of action, but also to
"actions brought to enforce statutory rights that are analogous to
common-law causes of action ordinarily decided in English law
courts in the late 18th century, as opposed to those customarily
heard by courts of equity or admiralty." Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 , 42 (1989)
(citing Curtis v. Loether, 415 U. S., at 193). To
determine whether a statutory action is more analogous to cases
tried in courts of law than to suits tried in courts of equity or
admiralty, we examine both the nature of the statutory action and
the remedy sought. See 492 U. S., at 42.

															Unlike many of our recent Seventh Amendment cases, which have
involved modern statutory rights unknown to 18th-century England,
see, e. g., Wooddell v. Electrical Workers, 502 U. S. 93 (1991)
(alleged violations of union's duties under Labor Management
Relations Act, 1947, and Labor-Management Reporting and Disclosure
Act of 1959); Grarifinanciera v. Nordberg, supra (action to rescind fraudulent preference under Bankruptcy Act); Tull v. United States, 481 U. S. 412 (1987)
(Government's claim for civil penalties under Clean Water Act); Curtis v. Loether, supra (claim under Title VIII of
Civil Rights Act of 1968), in this case there are close analogues
to actions seeking statutory damages under § 504(c). Before the
adoption of the Seventh Amendment, the common law and statutes in
England and this country granted copyright owners causes of action
for infringement. More importantly, copyright suits for mone- 349 tary damages were tried in courts of law, and thus before
juries.

															By the middle of the 17th century, the common law recognized an
author's right to prevent the unauthorized publication of his
manuscript. See, e. g., Stationers Co. v. Patentees, Carter's Rep. 89, 124 Eng. Rep. 842 (C. P. 1666). This protection
derived from the principle that the manuscript was the product of
intellectual labor and was as much the author's property as the
material on which it was written. See Millar v. Taylor, 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (K. B.
1769) (opinion of Mansfield, C. J.) (common-law copyright derived
from principle that "it is just, that an Author should reap the
pecuniary Profits of his own ingenuity and Labour"); 1 W. Patry,
Copyright Law and Practice 3 (1994). Actions seeking damages for
infringement of common-law copyright, like actions seeking damages
for invasions of other property rights, were tried in courts of law
in actions on the case. See Millar v. Taylor, supra, at 23962397, 98 Eng. Rep., at 251. Actions on the case, like other
actions at law, were tried before juries. See McClenachan v. McCarty, 1 Dall. 375, 378 (C. P. Phila. Cty. 1788); 5 J.
Moore, Moore's Federal Practice '38.11[5] (2d ed. 1996); 1 J.
Chitty, Treatise on Pleading and Parties to Actions 164 (1892).

															In 1710, the first English copyright statute, the Statute of
Anne, was enacted to protect published books. 8 Anne ch. 19 (1710).
Under the Statute of Anne, damages for infringement were set at
"one Penny for every Sheet which shall be found in [the
infringer's] custody, either printed or printing, published, or
exposed to Sale," half ("one Moiety") to go to the Crown and half
to the copyright owner, and were "to be recovered ... by Action of
Debt, Bill, Plaint, or Information." § 1. Like the earlier practice
with regard to common-law copyright claims for damages, actions
seeking damages under the Statute of Anne were tried in courts of
law. See 350 350 FELTNER v. COLUMBIA PICTURES TELEVISION, INC. Beckford v. Hood, 7 T. R. 621, 627, 101 Eng. Rep.
1164, 1167 (K. B. 1798) (opinion of Kenyon, C. J.) ("[T]he statute
having vested that right in the author, the common law gives the
remedy by action on the case for the violation of it").

															The practice of trying copyright damages actions at law before
juries was followed in this country, where statutory copyright
protections were enacted even before adoption of the Constitution.
In 1783, the Continental Congress passed a resolution recommending
that the States secure copyright protections for authors. See U. S.
Copyright Office, Copyright Enactments: Laws Passed in the United
States Since 1783 Relating to Copyright, Bulletin No.3, p. 1 (rev.
ed. 1963) (hereinafter Copyright Enactments). Twelve States (all
except Delaware) responded by enacting copyright statutes, each of
which provided a cause of action for damages, and none of which
made any reference to equity jurisdiction. At least three of these
state statutes expressly stated that damages were to be recovered
through actions at law, see id., at 2 (in Connecticut, damages for
double the value of the infringed copy "to be recovered ... in any
court of law in this State"); id., at 17 (in Georgia, similar
damages enforceable "in due course of law"); id., at 19 (in New
York, similar damages enforceable in "any court of law"), while
four others provided that damages would be recovered in an "action
of debt," a prototypical action brought in a court of law before a
jury. See F. Maitland, Forms of Action at Common Law 357 (1929)
(hereinafter Maitland); see Copyright Enactments 4-9 (in
Massachusetts, New Hampshire, and Rhode Island, damages enforceable
by "action of debt"); id., at 12 (in South Carolina, damages of one
shilling per sheet enforceable by "debt, bill, plaint or
information"). Although these statutes were short-lived, and hence
few courts had occasion to interpret them, the available evidence
suggests that the practice was for copyright actions seeking
damages to be tried to a jury. See Hudson & Goodwin v. Patten, 1 Root 133, 134 351 (Conn. Super. Ct. 1789) (jury awarded copyright owner £100 under
Connecticut copyright statute).

															Moreover, three of the state statutes specifically authorized an
award of damages from a statutory range, just as § 504(c) does
today. See Copyright Enactments 4 (in Massachusetts, damages of not
less than £5 and not more than £3,000); id., at 8 (in New
Hampshire, damages of not less than £5 and not more than £1,000);
id., at 9 (in Rhode Island, damages of not less than £5 and not
more than £3,000). Although we have found no direct evidence of the
practice under these statutes, there is no reason to suppose that
such actions were intended to deviate from the traditional
practice: The damages were to be recovered by an "action of debt,"
see id., at 4-9, which was an action at law, see Maitland 357.

															In 1790, Congress passed the first federal copyright statute,
the Copyright Act of 1790, which similarly authorized the awarding
of damages for copyright infringements. Act of May 31, 1790, ch.
15, §§ 2, 6, 1 Stat. 124, 125. The Copyright Act of 1790 provided
that damages for copyright infringement of published works would be
"the sum of fifty cents for every sheet which shall be found in
[the infringer's] possession, ... to be recovered by action of debt
in any court of record in the United States, wherein the same is
cognizable." § 2. Like the Statute of Anne, the Copyright Act of
1790 provided that half ("one moiety") of such damages were to go
to the copyright owner and half to the United States. For
infringement of an unpublished manuscript, the statute entitled a
copyright owner to "all damages occasioned by such injury, to be
recovered by a special action on the case founded upon this act, in
any court having cognizance thereof." § 6.

															There is no evidence that the Copyright Act of 1790 changed the
practice of trying copyright actions for damages in courts of law
before juries. As we have noted, actions on the case and actions of
debt were actions at law for which a 352 352 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															jury was required. See supra, at 349, 350.6 Moreover,
actions to recover damages under the Copyright Act of 1831which
differed from the Copyright Act of 1790 only in the amount
(increased to $1 from 50 cents) authorized to be recovered for
certain infringing sheets-were consistently tried to juries. See, e. g., Backus v. Gould, 7 How. 798, 802 (1849) (jury
awarded damages of $2,069.75); Reed v. Carusi, 20 F.
Cas. 431, 432 (No. 11,642) (CC Md. 1845) (jury awarded damages of
$200); Millett v. Snowden, 17 F. Cas. 374, 375 (No.
9,600) (SDNY 1844) (jury awarded damages of $625); Dwight v. Appleton, 8 F. Cas. 183, 185 (No. 4,215) (SDNY 1843) (jury
awarded damages of $2,000).

															Columbia does not dispute this historical evidence. In fact,
Columbia makes no attempt to draw an analogy between an action for
statutory damages under § 504(c) and any historical cause of
action-including those actions for monetary relief that we have
characterized as equitable, such as actions for disgorgement of
improper profits. See Teamsters v. Terry, 494 U. S. 558 , 570-571
(1990); Tull v. United States, 481 U. S., at 424.
Rather, Columbia merely contends that statutory damages are clearly
equitable in nature.

															We are not persuaded. We have recognized the "general rule" that
monetary relief is legal, Teamsters v. Terry, supra, at 570, and an award of statutory damages may serve purposes
traditionally associated with legal relief, such as compensation
and punishment. See Curtis v. Loether, 415 U. S., at
196 (actual damages are "traditional form of relief offered in the
courts of law"); Tull v. United States, 481 U. S., at
422

															6 The Copyright Act of 1790 did not provide for equitable
remedies at all, and in Stevens v. Gladding, 17 How.
447 (1855), we held that, even after Congress had provided for
equity jurisdiction under the Copyright Act, see Act of Feb. 15,
1819, ch. 19, 3 Stat. 481, the statute's damages provision could
not be enforced through a suit in equity. 17 How., at 455; see also Callaghan v. Myers, 128 U. S. 617 , 663 (1888) (Stevens v. Gladding determined that "the penalties
given by § 7 of the copyright act of 1831 cannot be enforced in a
suit in equity"). 353 ("Remedies intended to punish culpable individuals ... were
issued by courts of law, not courts of equity"). Nor, as we have
previously stated, is a monetary remedy rendered equitable simply
because it is "not fixed or readily calculable from a fixed
formula." Id., at 422, n. 7. And there is historical
evidence that cases involving discretionary monetary relief were
tried before juries. See, e. g., Coryell v. Colbaugh, 1 N. J. L. 77 (1791) (jury award of "exemplary damages" in an
action on a promise of marriage). Accordingly, we must conclude
that the Seventh Amendment provides a right to a jury trial where
the copyright owner elects to recover statutory damages.

															The right to a jury trial includes the right to have a jury
determine the amount of statutory damages, if any, awarded
to the copyright owner. It has long been recognized that "by the
law the jury are judges of the damages." Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C. P.
1677). Thus in Dimick v. Schiedt, 293 U. S. 474 (1935), the
Court stated that "the common law rule as it existed at the time of
the adoption of the Constitution" was that "in cases where the
amount of damages was uncertain[,] their assessment was a matter so
peculiarly within the province of the jury that the Court should
not alter it." Id., at 480 (internal quotation marks and
citations omitted). And there is overwhelming evidence that the
consistent practice at common law was for juries to award damages.
See, e. g., Duke of York v. Pilkington, 2
Show. 246, 89 Eng. Rep. 918 (K. B. 1760) (jury award of £100,000 in
a slander action); Wilkes v. Wood, Lofft 1, 19, 98
Eng. Rep. 489, 499 (C. P. 1763) (jury award of £1,000 in an action
of trespass); Huckle v. Money, 2 Wils. 205, 95 Eng.
Rep. 768 (C. P. 1763) (upholding jury award of £300 in an action
for trespass, assault and imprisonment); Genay v. Norris, 1 S. C. L. 6, 7 (1784) (jury award of £400); Coryell v. Colbaugh, supra (sustaining correctness of
jury award of exemplary damages in an action on a promise of
marriage); see also K. Redden, Punitive Dam- 354 354 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															ages § 2.2, p. 27 (1980) (describing "primacy of the jury in the
awarding of damages").

															More specifically, this was the consistent practice in copyright
cases. In Hudson & Goodwin v. Patten, 1
Root, at 134, for example, a jury awarded a copyright owner £100
under the Connecticut copyright statute, which permitted damages in
an amount double the value of the infringed copy. In addition,
juries assessed the amount of damages under the Copyright Act of
1831, even though that statute, like the Copyright Act of 1790,
fixed damages at a set amount per infringing sheet. See Backus v. Gould, supra, at 802 (jury awarded damages
of $2,069.75); Reed v. Carusi, supra, at 432 (same,
but $200); Dwight v. Appleton, supra, at 185 (same,
but $2,000); Millett v. Snowden, supra, at 375 (same,
but $625).

															Relying on Tull v. United States, supra, Columbia
contends that the Seventh Amendment does not provide a right to a
jury determination of the amount of the award. In Tull, we
held that the Seventh Amendment grants a right to a jury trial on
all issues relating to liability for civil penalties under the
Clean Water Act, 33 U. S. C. §§ 1251, 1319(d),7 see 481 U. S., at
425, but then went on to decide that Congress could
constitutionally authorize trial judges to assess the amount of the
civil penalties, see id., at 426-427.8 According to Columbia, Tull demonstrates that a jury determination of the amount of
statutory damages is not necessary "to preserve 'the substance of
the common-law right of trial by jury.'" Id., at 426
(quoting Colgrove v. Battin, 413 U. S. 149 , 157
(1973)).

															7 Section 1319(d) of the Clean Water Act provided that violators
of certain sections of the Act "shall be subject to a civil penalty
not to exceed $10,000 per day" during the period of the violation.
481 U. S., at 414.

															8 This portion of our opinion was arguably dicta, for our
holding that there was a right to a jury trial on issues relating
to liability required us to reverse the lower court's liability
determination. 355 In Tull, however, we were presented with no evidence that juries
historically had determined the amount of civil penalties to be
paid to the Government.9 Moreover, the awarding of civil penalties
to the Government could be viewed as analogous to sentencing in a
criminal proceeding. See 481 U. S., at 428 (SCALIA, J., concurring
in part and dissenting in part).l0 Here, of course, there is no
similar analogy, and there is clear and direct historical evidence
that juries, both as a general matter and in copyright cases, set
the amount of damages awarded to a successful plaintiff. Tull is
thus inapposite. As a result, if a party so demands, a jury must
determine the actual amount of statutory damages under § 504(c) in
order "to preserve 'the substance of the commonlaw right of trial
by jury.''' Id., at 426.

															***

															For the foregoing reasons, we hold that the Seventh Amendment
provides a right to a jury trial on all issues pertinent to an
award of statutory damages under § 504(c) of the Copyright Act,
including the amount itself. The judgment below is reversed, and we
remand the case for proceedings consistent with this opinion.

															It is so ordered.

															JUSTICE SCALIA, concurring in the judgment.

															It is often enough that we must hold an enactment of Congress to
be unconstitutional. I see no reason to do so here-

															9 It should be noted that Tull is at least in tension
with Bank of Hamil ton v. Lessee of Dudley, 2 Pet. 492
(1829), in which the Court held in light of the Seventh Amendment
that a jury must determine the amount of compensation for
improvements to real estate, and with Dimick v. Schiedt, 293
U. S. 474 (1935), in which the Court held that the Seventh
Amendment bars the use of additur.

															10 As we have noted, even under the Statute of Anne and the
Copyright Act of 1790, the amount awarded to the Government ("one
Moiety") was determined by a jury. 356 356 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															SCALIA, J., concurring in judgment

															not because I believe that jury trial is not constitutionally
required (I do not reach that issue), but because the statute can
and therefore should be read to provide jury trial.

															"[W]here a statute is susceptible of two constructions, by one
of which grave and doubtful constitutional questions arise and by
the other of which such questions are avoided, our duty is to adopt
the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 408
(1909). The Copyright Act of 1976 authorizes statutory damages for
copyright infringement "in a sum of not less than $500 or more than
$20,000 as the court considers just." 17 U. S. C. § 504(c). The
Court concludes that it is not "fairly possible," ante, at
345 (internal quotation marks omitted), to read § 504(c) as
authorizing jury determination of the amount of those damages. I
disagree.

															In common legal parlance, the word "court" can mean "[t]he judge
or judges, as distinguished from the counselor jury." Webster's New
International Dictionary 611 (2d ed. 1949) (def. 10d). But it also
has a broader meaning, which includes both judge and jury. See, e. g., ibid. (def. lOb: "The persons duly assembled under
authority of law for the administration of justice"); Black's Law
Dictionary 318 (5th ed. 1979) (" ... A body organized to administer
justice, and including both judge and jury"). We held in Lorillard v. Pons, 434 U. S. 575 (1978),
that a statute authorizing "the court ... to grant such legal or
equitable relief as may be appropriate," 29 U. S. C. § 626(b),
could fairly be read to afford a right to jury trial on claims for
backpay under the Age Discrimination in Employment Act of 1967.

															As the Court correctly observes, ante, at 347, there was
more evidence in Lorillard than there is in the present case
that "court" was being used to include the jury. The remedial
provision at issue explicitly referred to the "'powers, remedies,
and procedures' " of the Fair Labor Standards Act, under
which "it was well established that there was a right to a jury
trial," Lorillard, 434 U. S., at 580. The provision's 357 reference to "legal ... relief" also strongly suggested a
statutory right to jury trial. Id., at 583. The text of §
504(c) lacks such clear indications that "court" is being used in
its broader sense. But their absence hardly demonstrates that the
broader reading is not "fairly possible," e. g., Tull v. United States, 481 U. S. 412 , 417, n. 3
(1987). The only significant evidence cited by the Court for that proposition is that the "Copyright Act use[s] the term
'court' in contexts generally thought to confer authority on a
judge, rather than a jury," ante, at 346, but "does not use
the term 'court' in the subsection addressing awards of actual
damages and profits, see § 504(b), which generally are thought to
constitute legal relief," ibid. That is a fair observation,
but it is not, in my view, probative enough to compel an
interpretation that is constitutionally doubtful.

															That is at least so in light of contradictory evidence from the
statutory history, which the Court chooses to ignore. Section
504(c) is the direct descendant of a remedy created for
unauthorized performance of dramatic compositions in an 1856
copyright statute. That statute provided for damages "not less than
one hundred dollars for the first, and fifty dollars for every
subsequent performance, as to the court having cognizance thereof
shall appear to be just," enforced through an "action on the case
or other equivalent remedy." Act of Aug. 18, 1856, ch. 169, 11
Stat. 138, 139. Because actions on the case were historically tried
at law, it seems clear that this original statute permitted juries
to assess such damages. See Lorillard, supra, at 583.
Although subsequent revisions omitted the reference to "action[s]
on the case," they carried forward the language specifying damages
"as to the court shall appear to be just." See Act of July 8, 1870,
ch. 230, § 101, 16 Stat. 214; Act of Jan. 6, 1897, ch. 4, 29 Stat.
482. In 1909, Congress extended those provisions to permit all
copyright owners to recover "in lieu of actual damages and profits
such damages as to the court shall appear just .... " Act of Mar.
4, 1909, ch. 320, § 25(b), 358 358 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.

															SCALIA, J., concurring in judgment

															35 Stat. 1081. We have recognized that, although the prior
statutory damages provisions "were broadened [in 1909] so as to include other copyrights and
the limitations were changed in amount, ... the principle on which
they proceeded-that of committing the amount of damages to be
recovered to the court's discretion and sense of justice, subject
to prescribed limitations-was retained. The new provision, like one
of the old, says the damages shall be such 'as to the court shall
appear to be just.'" L. A. Westermann Co. v. Dispatch
Printing Co., 249
U. S. 100 , 107 (1919). If a right to jury trial was consistent with the meaning of the
phrase "as to the court ... shall appear to be just" in the 1856
statutory damages provision, I see no reason to insist that the
phrase "as the court considers just" has a different meaning in
that provision's latest reenactment. "[W]here, as here, Congress
adopts a new law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as
it affects the new statute." Lorillard, supra, at 581.

															I do not contend that reading "court" to include "jury" is
necessarily the best interpretation of this statutory text.
The Court is perhaps correct that the indications pointing to a
change in meaning from the 1856 statute predominate. As I have
written elsewhere, however: "The doctrine of constitutional doubt does not require that the
problem-avoiding construction be the preferable one-the one
the Court would adopt in any event. Such a standard would deprive
the doctrine of all function. 'Adopt the interpretation that avoids
the constitutional doubt if that is the right one' produces
precisely the same result as 'adopt the right interpretation.'
Rather, the doctrine of constitutional doubt comes into play when
the statute is 'susceptible of' the problem- 359 avoiding interpretation, Delaware & Hudson Co.,
213 U. S., at 408-when that interpretation is reasonable, though not necessarily the best." Almendarez-Torres v. United States, ante, at 270
(dissenting opinion). As the majority's discussion amply demonstrates, there would be
considerable doubt about the constitutionality of § 504(c) if it
did not permit jury determination of the amount of statutory
damages. Because an interpretation of § 504(c) that avoids the
Seventh Amendment question is at least "fairly possible," I would
adopt that interpretation, prevent the invalidation of this
statute, and reserve the constitutional issue for another day.