v22 #6 Cases of Note – Copyright: Those Dreaded Statutory Damages

Column Editor: Bruce Strauch (The Citadel) strauchb@citadel.edu

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C. Elvin Feltner, Jr., Petitioner v. Columbia Pictures Television, Inc., 523 U.S. 340; 1998 U.S. LEXIS 2301 (1998).

And that U.S. gives it away. This is a big Soo-preem Cawt case with a majority opinion by J. Thomas. Who says he never writes an opinion?

Columbia Pictures TV cut off licensing TV series to three stations due to delinquent royalty payments. And after the fashion of those who don’t pay, the stations kept running the shows among which was that fabulous TV Land pablum “Who’s the Boss,” “Silver Spoons,” “Hart to Hart” and “T.J. Hooker.” None of which is necessary for understanding the case, but does ground this whole thing in TV Wasteland verisimilitude.

Columbia sued for copyright infringement, won summary judgment on the issue, and elected to recover statutory damages rather than determine the actuals. This is an option under § 504(c) of the Act.

Feltner, the owner of all of the stations, appealed. He claimed the Seventh Amendment gave him a right to a jury trial on damages.

And Now the Appeal

Under the Act, in lieu of proving actual damages, you can recover statutory damages “… 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). And, warming the hearts of lawyers all over the land, if the infringement was willful, “… the court [in] its discretion may increase the award …” to a max of $100,000. Id.

The Statute is silent on the point of a jury trial.

The trial judge held each episode was a separate violation for a total of 440. Feltner had done it willfully, but the judge set the damages at $20,000 per rather than the $100,000, Columbia was slavering for.

No, I haven’t a clue as to his reasoning.

Nonetheless, a hefty total of $8,800,000.

Which you will admit is fairly easy to divide by three to get the plaintiff ’s lawyer’s share. Yes, you have to round off a tad.

The Court of Appeals for the Ninth Circuit held for Columbia in reliance upon Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (CA9 1977). This held that the 1909 Copyright Act required the trial judge to assess the statutory damages. And if Congress wanted to change the Krofft rule, it would have changed the language of the Act.

Assuming they read it, as we’re finding of late that they don’t.

At the Supremes

The first consideration was whether the whole 7th A. Constitutional thingy could be dodged by a careful reading of the statute. And it couldn’t.

There is no grant of a right to a jury assessment. The language is damages assessed in an amount “the court considers just.” § 504(c)(1). No mention of juries at all.

“Court” seems to mean judge, not jury. Cf. F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228 (1952). This is based on all the other uses of the word “court” in the Act which mean judge (grant injunctions, order the impounding, order the destruction blah-blah).

So to the Constitution it is.

7th Amendment

“[I]n Suits at common law … the right to trial by jury shall be preserved …” U.S. Const. Amdt. 7. This has been interpreted to mean not just suits which the common law of England recognized and were brought over here when we were colonies, but all suits at law rather than equity. Parsons v. Bedford, 3 Peters 433, 447 (1830).

Don’t ask me where to find that book.

But we will take the usual detour to explain law and equity. Back in Merrie Olde England when the king had real power, the courts had only one remedy — money damages. So if you kept, let’s say, trespassing on my land to graze your cows, I had to sue you and assess the damages after the fact each time.

But because the King had real power, I could go and grovel to him and ask him to order you to stop trespassing. And since he was busy hawking, drinking, and wenching, he appointed a Chancellor in Equity to handle these matters for him. My plea was heard before this man. No jury.

One of those Chancellors came up with the remedy of injunction. Stay off Strauch’s land. Furthermore, the Chancellor developed what was in effect his own court system which thrived on the fees it charged and was not about to turn this nifty remedy over to the law courts. Chancery as it was called in England was the court in Dickens’ Bleak House.

We have merged law and equity, but the right to jury trial remains one for matters of law.

Our Supreme has oft had occasion to rule on the right to jury trial in law type matters unknown to 18th-century England. See, e.g., Wooddell v. Electrical Workers, 502 U.S. 93 (1991). But our case has “close analogues” to § 504(c).

By the 17th century, an author was protected under common law and could sue in law courts for damages. And since it was a law court, he got a jury trial. See, e.g., Stationers Co. v. Patentees, Carter’s Rep. 89, 124 Eng. Rep. 842 (C.P. 1666).

The 1710 Statute of Anne was the first English copyright statute to protect published books. 8 Anne ch. 19 (1710). An action under this statute was tried in a law court. Even though the Constitution specifically mentions copyright under the limited powers of Congress, those lads in Washington initially couldn’t be bothered, and recommended the States handle it. Twelve states (no Delaware) enacted copyright statutes with actions for damages and no reference to equity jurisdiction.

This changed in 1790 when Congress passed the first copyright act which authorized damages for infringement. There were statutory damages of fifty cents for every sheet in the infringer’s possession. The Cases of Note from page 57 Copyright Act of 1831 raised the damages to $1/sheet, and these matters were consistently tried to juries. See, e.g. Backus v. Gould, 48 U.S. 798 (1849).

A right to a jury trial includes the right of a jury determining the amount of damages awarded. Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677).

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