523 U.S.

340
118 S.Ct. 1279
140 L.Ed.2d 438

C. Elvin FELTNER, Jr., Petitioner,

v.
COLUMBIA PICTURES TELEVISION, INC.
No. 96-1768.

Supreme Court of the United States

Argued Jan. 21, 1998.
Decided March 31, 1998.

Syllabus *
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 (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, 82 S.Ct. 894, 899-900, 8 L.Ed.2d 44. Feltner's reliance
on Lorillard v. Pons, 434 U.S. 575, 585, 98 S.Ct. 866, 872, 55 L.Ed.2d 40,
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, 107 S.Ct. 1831,
1835, 95 L.Ed.2d 365. Pp. ____-____.
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. ____-____.
(a) The Seventh Amendment applies to both common-law causes of action
and to statutory actions more analogous to cases tried in 18th-century
courts of law than to suits customarily tried in courts of equity or
admiralty. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct.
2782, 2790, 106 L.Ed.2d 26. To determine the proper analogue, this Court
examines both the nature of the statutory action and the remedy sought.
See ibid. Pp. ____-____.
(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. ____-____.
(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 common-law 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. ____-____.
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.
John G. Roberts, Jr., Washington, DC, for petitioner.
Henry J. Tashman, Los Angeles, CA, for respondent.
Justice THOMAS delivered the opinion of the Court.

Section 504(c) of the Copyright Act 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.

* 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' license 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
4

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 any one 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 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 (C.A.9 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 damages3 -the Court of 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. ----, 118
S.Ct. 30, 138 L.Ed.2d 1059 (1997).
II
10

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, 107 S.Ct. 1831, 1835, n. 3, 95 L.Ed.2d 365 (1987) (quoting
Curtis v. Loether, 415 U.S. 189, 192, n. 6, 94 S.Ct. 1005, 1007, n. 6, 39
L.Ed.2d 260 (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, 107 S.Ct., at 1835, n. 3, on an award of statutory damages.4

11

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 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.

12

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, 73 S.Ct. 222,
225, 97 L.Ed. 276 (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) ("the court may
order the impounding . . . of all copies or phonorecords''); 503(b) (" [a]s part

of a final judgment or decree, the court may order the destruction or other
reasonable disposition of all copies or phonorecords''); 505 ("the 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, 82 S.Ct. 894, 899, 8 L.Ed.2d 44
(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 (C.A.2 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 (C.A.7 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'');
4 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)).
13

Feltner relies on Lorillard v. Pons, 434 U.S. 575, 585, 98 S.Ct. 866, 872, 55
L.Ed.2d 40 (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, 98 S.Ct., at 869-870; 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, 98 S.Ct., at 871. 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

14

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
15

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., Amdt. 7. Since Justice Story's time, the Court
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, 7 L.Ed. 732 (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, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989) (citing Curtis v.
Loether, 415 U.S., at 193, 94 S.Ct., at 1007-1008). 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, 109 S.Ct., at 2790.
16

Unlike many of our recent Seventh Amendment cases, which have involved
modern statutory rights unknown to 18th-century England, see, e.g., Wooddell
v. International Brotherhood of Electrical Workers, 502 U.S. 93, 112 S.Ct. 494,
116 L.Ed.2d 419 (1991) (alleged violations of union's duties under Labor
Management Relations Act, 1947, and Labor-Management Reporting and
Disclosure Act of 1959); Granfinanciera v. Nordberg, supra (action to rescind
fraudulent preference under Bankruptcy Act); Tull v. United States, supra
(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 monetary damages were
tried in courts of law, and thus before juries.

17

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) (Mansfield, 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, 2396-2397, 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, 1 L.Ed. 183
(1788); 5 J. Moore, Moore's Federal Practice 38.11[5] (2d ed.1996); 1 J.
Chitty, Treatise on Pleading and Parties to Actions, at 164 (1892).
18

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 Beckford v. Hood, 7 T.R. 621, 627, 101
Eng. Rep. 1164, 1167 (K.B.1798) (" [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'') (Kenyon, C.J.).

19

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, The 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 v. Patten, 1 Root 133, 134 (Conn.Super.1789) (jury
awarded copyright owner 100 under Connecticut copyright statute).
20

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.

21

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.

22

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
jury was required. See supra, at __, __. 6 Moreover, actions to recover damages
under the Copyright Act of 1831-which 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, 12 L.Ed. 919 (1849) (jury awarded
damages of $2,069.75); Reed v. Carusi, 20 F. Cas. 431, 432, No. 11,642
(D.Md.1845) (CCMd.1845) (jury awarded damages of $200); Millett v.
Snowden, 17 F. Cas. 374, 375 (S.D.N.Y.1844) (jury awarded damages of
$625); Dwight v. Appleton, 8 F.Cas. 183, 185 (C.D.N.Y.1843) (jury awarded
damages of $2,000).

23

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, 110 S.Ct.
1339, 1347-1348, 108 L.Ed.2d 519 (1990); Tull v. United States, 481 U.S., at
424, 107 S.Ct., at 1838-1839. Rather, Columbia merely contends that statutory
damages are clearly equitable in nature.

24

We are not persuaded. We have recognized the "general rule'' that monetary
relief is legal, Teamsters v. Terry, supra, at 570, 110 S.Ct., at 1347-1348, 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, 94 S.Ct., at 1009 (actual damages are "traditional form of relief
offered in the courts of law''); Tull v. United States, supra, at 422, 107 S.Ct., at
1838 ("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, 107 S.Ct., at 1838, 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.

25

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, 55 S.Ct. 296, 79 L.Ed. 603
(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, 55 S.Ct., at
298 (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 (K.B.1763) (jury award of 1,000
in an action of trespass); Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768
(K.B.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
Damages 2.2, p. 27 (1980) (describing "primacy of the jury in the awarding of
damages'').
26

More specifically, this was the consistent practice in copyright cases. In

Hudson 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).

27

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, 107 S.Ct., at 1839-1840,
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, 107 S.Ct.,
at 1840-1841.8 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, 107 S.Ct.,
at 1840 (quoting Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 2453, 37
L.Ed.2d 522 (1973)).

28

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, 107
S.Ct., at 1841 (SCALIA, J., concurring in part and dissenting in part).10 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
common-law right of trial by jury.''' Id., at 426, 107 S.Ct., at 1840.

***
29

30

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.

31

It is so ordered.

32

Justice SCALIA, concurring in the judgment.

33

It is often enough that we must hold an enactment of Congress to be

unconstitutional. I see no reason to do so here-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.

34

" [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, 29 S.Ct. 527,
536, 53 L.Ed. 836 (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 __ (internal quotation marks
omitted), to read 504(c) as authorizing jury determination of the amount of
those damages. I disagree.

35

In common legal parlance, the word "court'' can mean " [t]he judge or judges,
as distinguished from the counsel or 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., id., (def. 10b: "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, 98 S.Ct. 866, 55 L.Ed.2d 40 (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.

36

As the Court correctly observes, ante, at __, 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, 98 S.Ct., at 870. The provision's reference to "legal . . . relief'' also
strongly suggested a statutory right to jury trial. Id., at 583, 98 S.Ct., at 871872. 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, 107 S.Ct. 1831, 1835, n. 3, 95 L.Ed.2d 365 (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 __, 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,'' ante, at __. That is a fair
observation, but it is not, in my view, probative enough to compel an
interpretation that is constitutionally doubtful.
37

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, 98 S.Ct., at 871-872.
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
January 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 March 4,
1909, ch. 320, 25(b), 35 Stat. 1081. We have recognized that, although the
prior statutory damages provisions

38

"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, 39 S.Ct. 194, 196, 63 L.Ed. 499 (1919).

39

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, 434
U.S., at 581, 98 S.Ct., at 870.

40

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:

41

"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-avoiding interpretation, Delaware & Hudson Co.,
213 U.S., at 408, 29 S.Ct., at 536-when that interpretation is reasonable, though
not necessarily the best.'' Almendarez-Torres v. United States, 523 U.S. ----, ---, 118 S.Ct. 1219, 1243-1244, --- L.Ed.2d ---- (1998) (SCALIA, J., dissenting).

42

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
540(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.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.

During the course of the litigation, Columbia dropped all claims against all
parties except its copyright claims against Feltner.

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
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 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)).

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 (C.A.8 1996);
Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1014 (C.A.7 1991);
Gnossos Music v. Mitken Inc., 653 F.2d 117, 119 (C.A.4 1981); see also Oboler
v. Goldin, 714 F.2d 211, 213 (C.A.2 1983); 4 M. Nimmer & D. Nimmer,
Nimmer on Copyright 14.04[C] (1997).

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.

The Copyright Act of 1790 did not provide for equitable remedies at all, and in
Stevens v. Gladding, 17 How. 447, 15 L.Ed. 155 (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. Id., at 455; see also Callaghan v.
Myers, 128 U.S. 617, 663, 9 S.Ct. 177, 190, 32 L.Ed. 547 (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'').

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, 107 S.Ct., at 18331834.

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.

9

It should be noted that Tull is at least in tension with Bank of Hamilton v.

Lessee of Dudley, 2 Pet. 492, 7 L.Ed. 496 (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, 55 S.Ct. 296, 79 L.Ed. 603 (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.