Feltner's Pyrrhic Victory Thomas G. Field, Jr. Professor of Law (from The [Pierce Law] Advocate, Summer 2002, at 8)      Pity poor C. Elvin Feltner! Refused a jury trial and ordered to pay $8.8 million, he sought Supreme Court review. After granting certiorari, the Court found the Seventh Amendment to entitle him to a jury. Feltner's victory, however, must have seemed hollow when, on remand, a jury nearly quadrupled his liability. As discussed below, Feltner plausibly maintained that he owes nothing. The Ninth Circuit disagreed, and the Supreme Court has denied certiorari.[1]      Feltner's problems began a little over ten years ago when he purchased three failing television stations.[2] In pursuit of their better financial health, he sought to reduce programming costs and to restructure their debt.      Among the programs the stations licensed were four owned by Columbia Pictures Television, Inc -- Who's the Boss?; Silver Spoons; Hart to Hart; and T.J. Hooker. -- Columbia was willing to negotiate but could not agree to terms satisfying Feltner.      Despite its willingness to continue talking, in early 1991 Columbia terminated the stations' licenses. That December, it also sued in California. Eventually it dropped other parties and claims to pursue only copyright infringement against Feltner, himself.      In 1993, the District Court found Feltner liable on summary judgment. Columbia then elected statutory damages in lieu of actual damages.[3] Section 504(c)(1) of the Copyright Act allows such damages "for all infringements..., with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally...." Section 504(c)(2) also provided[4] -- if a plaintiff could meet the burden of proving willful infringement -- for awards as high as $100,000.      Feltner requested and was denied a jury for damage assessment. The Court itself undertook the task, finding first that each episode, in each series -- and each airing, by each station -- was an event justifying a separate award. This amounted to 440 discrete bases for statutory damages.      Next, notwithstanding claims that he believed the stations' broadcasts to b licensed, the Court found Feltner's infringements to be willful.[5] Finally, it awarded $20,000 per work -- well below the maximum. Multiplied by 440, that yields the aforementioned $8.8 million.      After the Ninth Circuit affirmed those determinations,[6] the Supreme Court granted Feltner's petition for certiorari. Finding him entitled to a jury trial under the Seventh Amendment, the Court reversed.[7] Justice Scalia would have avoided the constitutional issue; he argued that "the statute can and therefore should be read to provide jury trial."[8] No other Justice agreed, however. Rather, the majority concluded that Congress did intend for judges, not juries, to determine statutory damages. Whether § 504(c) was void, or was to be enforced other than as the Court found Congress to have intended, was not explicitly addressed.      When the case was returned, the Ninth Circuit remanded solely on damages.[9] A jury was convened and ultimately found Feltner's infringements sufficiently willful to award over three-and-a-half times the prior assessment -- $72,000 for each event mentioned above.      This gave Feltner ample reason to appeal yet again.[10] His key[11] argument was that § 504(c) could not be salvaged, but the Ninth Circuit concluded otherwise:[12]      .... [The Supreme Court stated that] "the Seventh Amendment provides a right to a jury trial on all issues pertaining to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself." This language evinces the Court's intent to preserve a plaintiff's ability to seek statutory damages under § 504(c)....      .... According to Feltner, ... the Court must... wait for Congress to re-enact § 504(c) with a jury trial provision included. This argument fails to understand the Supreme Court's holding.... In Feltner, the Supreme Court held that § 504(c) provides a remedy for copyright infringement, and the Seventh Amendment provides a right to a jury trial when that remedy is at issue. This holding is consistent with the Supreme Court's interpretation of other federal statutes that provide a remedy but similarly fail to provide for a jury trial. Tull v. United States, 481 U.S. 412 (1987).... It is peculiar that the Ninth Circuit relied on Tull after the Supreme Court in Feltner had said:[13] Here... 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.      Neither "interpreting" the Act to evade constitutional issues,[14] nor the typical severance problem of whether to void an entire section[15] is involved. Finding it possible to construe § 504 (c) to have continuing vitality under such circumstances seemed unprecedented but it is not.      In the famous Trademark Cases, the Court refused to accept such a task, but it said:[16] If we should... undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do....      Yet, this predates a modern recognition of "the judicial power of reformation to preserve constitutionality,"[17] and is consistent with the view that Congress would rather have statutory damages awarded by juries than to award them not at all.      Merits aside, everyone would have nevertheless been better served had the Supreme Court initially addressed the issue of reformation -- and Feltner most of all. [1] Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186 (2001), cert. den. sub nom. Feltner v. Columbia Pictures Television, Inc., 122 S.Ct. 1063 (2002). [2] This was done through two companies, one of which was Krypton Broadcasting of Birmingham, Inc. [3] Columbia also sought costs and attorney fees, but those aspects of the case need not be addressed. [4] The ceiling has since been raised to $150,000. [5] Indeed, 415 episodes were broadcast after Columbia filed its complaint. [6] Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284 (1997). [7] Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998). [8] 523 U.S. at 356 (concurring). [9] Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 152 F.3d 1171 (1998). [10] Columbia Pictures Television, Inc, 259 F.3d 1186. [11] Feltner also challenged the multiplier, but the Court said, 259 F.3d at 1194: "[T]he law of the case doctrine bars reconsideration of the question whether each episode constitutes a separate work...." [12] 259 F.3d 1192 (citations omitted). [13] 523 U.S. at 355 (emphasis added). [14] An extreme instance is Welch v. United States 398 U.S. 333 (1970). [15] See uncodified § 115 of the 1976 Copyright Act (P.L. No. 94-553): "If any provision... is declared unconstitutional, the validity of the remainder of this title is not affected." [16] 100 U.S. 82, 98-99 (1879). [17] Kopp v. Fair Political Practices Comm., 905 P.2d 1248, 1260 (S.Ct. Cal., en banc 1995) (attributing the modern view to Justic Harlan's concurring opinion in Welsh v. U.S.,398 U.S. 333, 344-367 (1970)0.

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