|Syllabus ||Opinion |
[ Thomas ]
[ Scalia ]
Scalia, J., concurring in judgment
C. ELVIN FELTNER, Jr., PETITIONER v. COLUMBIA PICTURES TELEVISION, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 31, 1998]
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 herenot 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 4 (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 counsel or jury. Websters 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); Blacks 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 6, 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
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 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
were broadened [in 1909] so as to include other copyrights and the limitations were changed in amount,
. . . the principle on which they proceededthat of committing the amount of damages to be recovered to the courts discretion and sense of justice, subject to prescribed limitationswas retained. The new provision, like one of the old, says the damages shall be such as to the court shall appear to be just.
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 provisions 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.
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 onethe 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 408when that interpretation is reasonable, though not necessarily the best. Almendarez-Torres v. United States, 523 U.S. ___, ___ (Scalia, J., dissenting).
As the majoritys 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.