Warren E. Burger: Mr. Hamburg, in number 17, United States against Knox. Are you ready?
Mervyn Hamburg: Mr. Chief Justice and may it please the Court. The issue involved in this case is related to the proceeding when -- in that involves a prosecution under 18 U.S.C. 1001 for making false statements in purported compliance with other statutes, in this case, certain sections of the Internal Revenue Code relating to wagering taxes. The precise issue here is whether an individual may properly assert the privilege against self-incrimination as a complete defense to a charge of making false statements on wagering tax returns. The District Court in the Western District of Texas held that the privilege was such a defense and dismissed false statement charges against the appellee, James Knox. The case is here on the Government's appeal of that dismissal. The indictment was filed before this Court decided the Marchetti and Grosso cases. This indictment charged the appellee with four counts of failing to file wagering tax returns, that is Form 11-C, a copy of which we've included in our appendix, and with failure to pay the special occupational tax, covering various prior to October 14, 1965. The indictment also contains two counts, Counts Five and Six, which charge that the appellee made false statements on returns which he did file on October 14 and on October 15, 1965. The statements being that he declared under penalties of perjury that the returns were to the best of his knowledge, true, correct and complete whereas in truth, they were not in that the number of employees he had claimed had been understated and misrepresented. Now prior to trial, this Court decided Marchetti versus United States and Grosso versus United States and in those cases, this Court recognized that an individual charge with failing to file wagering tax forms which invariably contained information incriminating him under other laws, could properly assert that privilege, the privilege against self-incrimination as a complete defense. Thereafter, the appellee moved to dismiss all of the charges against him including Counts Five and Six, the false statement Counts alleging that such a disposition was required as a result of the holding of the Marchetti and Grosso. The Government responded that it intended to pursue only Counts Five and Six and as to those counts it argued in effect that their validity had not been affected by Marchetti and Grosso. The District Court disagreed with the Government's position and in a brief memorandum, dated July 24, 1968, the Court -- that Court held that the constitutional privilege against self-incrimination prevents prosecution for failure to answer the form in any respect. Judge Roberts relied upon Grosso in particular where charge of conspiracy to evade payment of the excise tax on wagering was dismissed along with the substitute charges of failing to pay the excise tax and failing to pay this special computational tax. In the Government's view, Judge Roberts misinterpreted and misapplied the Court's decisions, particularly Grosso. Thus I believe, it's appropriate to begin with the discussion of the difference between Grosso and this situation. In Grosso, the Court held that a conspiracy charge had to fall with other counts since it was bottomed solely on allegations of invasion of the excise and occupational taxes. The courts words, the conspiracy raise “Questions identical with those presented by the substitutes counts.” In contrast to Grosso, the false statement counts are not identical. They are not even similar to the charges of failure to file a wagering tax return or pay the tax. While we no longer contest that privilege against self-incrimination as an appropriate defense to one charged with failure to file, we don't believe that that privilege protects an independent act of making a false statement on a form which the appellee did in fact filed. In order words, the problem of incrimination arises at the threshold when one decides whether or not to file and face -- if he files perhaps, he might face prosecution under some state gambling laws or if he fails to file prosecution under a federal statute. The appellee here resolved this question of whether to stand on his privilege or not. He didn't avail himself of the what we believe to be the customary means by which statutes are challenged by non compliance. Instead, he purported to comply and in this purported compliance, he lied. He is now charged with a substantive offense of making false statements in violation of a statute having no connection with the wagering tax laws except insofar as the tax laws form that framework within which the appellee committed violations of this wholly distinct criminal statute. Thus in our view, the Fifth Amended privilege should not control the outcome of the case in the District Court. Our stand is not novel by any means. A number of cases decided in the previous case argued here beginning with Kapp and Kay also cited in our brief have been controlled by a rational similar to the one we urge here.
Byron R. White: Did the District Court consider Dennis?
Mervyn Hamburg: If it did Your Honor, it's certainly didn't mention in its brief in any way the --
Byron R. White: Or was it say --
Mervyn Hamburg: And then, I'm sorry, and its appeal --
Byron R. White: You know whether it was cited to the Court or not?
Mervyn Hamburg: As a matter of fact, it was not cited to the lower court.
Byron R. White: It had been decided though at the end?
Mervyn Hamburg: I believe so, yes. But I don't believe the Government in its reply in the District Court cited any of the cases here, Kapp or Kay or Dennis.
Byron R. White: So, it's never been considered by the District Court in the light Dennis?
Mervyn Hamburg: Except insofar as Dennis had been decided and I assume that the Court was aware of the holding in Dennis. Moreover, certainly the same principles of Dennis had been used and applied in Kapp and Kay insofar as this situation is concerned. These cases holding that the uncons -- the claim of unconstitutionality of the underlying statute doesn't excuse a calculated, deliberate course of perjury or fraud or deceit. In this case by the way of course, we are not dealing with the claim that the underlying statute is unconstitutional. We're only dealing with a privilege against self-incrimination. You could properly assert this privilege if the lawful process, time tested process of raising it when he fails to comply and that defense is all that Marchetti and Grosso established. But if an underlying statute can't be attacked on constitutional grounds, certainly, an individual shouldn't be heard to raise a constitutional privilege in a situation where he purported to comply with the law.
Speaker: Am I right in thinking that speaking from recollection, am I right in thinking that the perjury statements that you complain of here charged him with concern not merely a failure to fill out a blank, a space in the blank which called for number of employees, but an affirmative filling out of that blank with the wrong number?
Mervyn Hamburg: Yes, Your Honor.
Speaker: No doubt about that?
Mervyn Hamburg: No doubt about it.
Byron R. White: He said none in one case and gave a wrong number to another?
Mervyn Hamburg: Yes. We have in fact photo copy the --
Byron R. White: The address?
Mervyn Hamburg: The statements --
Byron R. White: That's -- recollection.
Mervyn Hamburg: And I have included in the country in our appendix.
Potter Stewart: So, the indictment itself is more than a little ambiguous in that regard, it is not?
Mervyn Hamburg: It might need to be quite awkward Your Honor, but it certainly is sufficient to indicate --
Potter Stewart: That's the indictment that I remember when time this case we granted certiorari. It said it indicates -- the indictment indicates, so what he did was leave the certain things blank?
Mervyn Hamburg: The indictment --
Potter Stewart: Now, you're trying to cure that ambiguity with this photo stat of what he apparently actually did i.e the right to none the first time and on the amendment one to write the names and addresses of two or three people and you said they were more people than that?
Mervyn Hamburg: Yes.
Potter Stewart: But the -- with -- was that exhibit appended to the original indictment?
Mervyn Hamburg: I don't believe so.
Potter Stewart: How do they get here in the record?
Mervyn Hamburg: It was part of the prosecution's file.
Potter Stewart: But it's in the record of this case?
Mervyn Hamburg: I, I--
Potter Stewart: Or where was it consider --
Mervyn Hamburg: I -- I really couldn't say whether it was in fact in the record. I don't know that the court below considered it, but I suppose --
Potter Stewart: The court below did not at all address itself to this question or not considering the --
Mervyn Hamburg: The Court did not address itself to this. No.
Potter Stewart: -- that is the question that speaking for myself alone that interested me because the indictment seem to indicate that you were charged with somebody with the false statement who hadn't made any statement at all?
Mervyn Hamburg: Well, if -- its seems -- the indictment is rather awkward, we'll be glad to furnish particulars at the appropriate occasion to explain any situation of in artful drawing, but we certainly believe that the indictment states in the sense that it apprises the dependent of what he is charged against and will protect him from double jeopardy problems.
Thurgood Marshall: So far as you concerned, it could be that this is just been put in the record?
Mervyn Hamburg: Yes, Mr. Justice Marshall.
Thurgood Marshall: Does that helped you at all?
Mervyn Hamburg: Well, it is just there for explanation. We're concerned only at the indictment stage as to what the man has been charged with. He point --
Thurgood Marshall: But this isn't a part of what he has been charged with?
Mervyn Hamburg: Yes. His -- his charged with making a false statement and at a trial, we are going to show what the false statement was all about.
Thurgood Marshall: The big difficulty of that -- of both in the indictment with an exhibit -- nobody knew about it until just now?
Mervyn Hamburg: Oh, I am not sure of it, no one knew about it. All I can tell you is that isn't discussed by the district judge.
Thurgood Marshall: Because it wasn't before it, he never saw it?
Mervyn Hamburg: Well, he saw the indictment, yes.
Thurgood Marshall: But you never saw those exhibits that you have in the back here?
Mervyn Hamburg: Well, the chances are that you didn't -- I really don't know whether he do it -- did or did not.
Byron R. White: The District Court didn't dismiss this case because on the grounds that failure to fill out a blank wouldn't covered by Title I?
Mervyn Hamburg: No. He reached the constitutional issue.
Byron R. White: He dismissed the case because the underlying statute is unconstitutional, that's what he put it here?
Mervyn Hamburg: That's correct Mr. Justice White.
Warren E. Burger: And so, we don't need this photo stat copy of the tax return at all to decide this case. It's --
Mervyn Hamburg: No, I don't think you do. We just put it there and just --
Warren E. Burger: Totally irrelevant?
Mervyn Hamburg: Irrelevant and there only for exemplar your purposes. In view of the fact that we believe that the principles here are similar to the principles just discussed for the reason stated in our brief and reply brief on any other matters, we submit that the District Court's judgment should be reversed and Counts Five and Six ordered reinstated.
Potter Stewart: It would your position that this matter that's listed in the circuit, colloquially here would be a matter -- defensive matter on the merits in the District Court?
Mervyn Hamburg: That's correct Mr. Justice Stewart.
Thurgood Marshall: And if the defendant asked for it, you could get it?
Mervyn Hamburg: Yes sir.
Warren E. Burger: Mr. Smith.
J. Edwin Smith: Mr. Chief Justice and may it please the Court. I'll touch briefly in the beginning on the point that was discussed as to the contents of the indictment in this to make this specific that we submit that an offense is not charged when you charged only that feel to make to answer something in one of the Government's forms that that is not a false statement just by omitting this particular portion of the question and the reading of the indictment will disclose that that's all that the Government charged. They didn't charge, that he put none, that he put three when he should have put five, and just said that he didn't answer this, instead, he didn't give their names, addresses, staff numbers and so forth.
Warren E. Burger: The District Court didn't decide the case on that ground, did they?
J. Edwin Smith: Not only as affirmative ruling in his opinion, no sir. That point was raised in the end and the motion to challenge the indictment that the indictment did not state in effect. And we urge in our brief here that two state authorities not in the federal but the one with fine that such a charge is not a false statement. And I -- that point we submit indictment itself just look at it they are not charged an offense when it's an omission to make a statement.
Byron R. White: No, this argue is been here on the next appeal limited to the deciding that the issue that the district judge decided? It's untrue that if he had decided that this -- that the indictment should have been dismissed because of construction of the statute, maybe that issue could've come here too, but that isn't what he decided?
J. Edwin Smith: Mr. Justice White, I would believe that at any time, a criminal defendant can challenge this sufficiency of the indictment. I maybe wrong on my particular phase of the rules, but I think that could be raised almost anytime.
Byron R. White: No, but this was dismissed the question of our jurisdiction under the [Inaudible]
J. Edwin Smith: That maybe -- I'll be frank with you, I couldn't answer the question as to your jurisdiction.
Byron R. White: Oh, I rather think you should.
J. Edwin Smith: Then if I may then turn to the question of the constitutionality problem involved here, and I think that the Government in its position here has wholly failed to recognize that if a statement made, assuming he made a false statement was made, it was made under the compulsion of criminal sanctions if he didn't make a statement. And this Court has held that in Marchetti and Grosso that these tax stamps -- statutes are unconstitutional that to require, they file these stamped tax returns, information returns is a violation of the Fifth Amendment immunity against self-incrimination. Now, this poses a very fundamental point as to whether the United States Government can by use of a unconstitutional statute which deprived a man of his Fifth Amendment immunity, when here -- in compelling to do that under the threat of criminal prosecution then turn around and persecute him on a 1001 if he makes a false statement in that coerced information.
Hugo L. Black: Then that's not striking to you familiar to the last argument you just heard here?
J. Edwin Smith: I agree with Your Honors on that point, Mr. Justice Black and I think I've urged it explicitly in my brief from the very beginning that I think the Government in this situation come before this Court or in this prosecution with unclean hands.
Thurgood Marshall: But Mr. Smith as to matter of coercion, he had now the problem? He could've gotten that in the gambling business, could he?
J. Edwin Smith: He could've done that, yes sir, but the constitution says, either you committed a crime, the most vile crime, you can't be compelled to give information incriminating yourself.
Thurgood Marshall: Well, if he had stopped gambling, the Government wouldn't have prosecuted him, would they?
J. Edwin Smith: Do you mean had he stopped to gambling since he filed that return?
Thurgood Marshall: Around about same time?
J. Edwin Smith: I doubt it. I don't know whether he is still gambling or not. I don't know about that Mr. Justice Marshall.
Thurgood Marshall: What about this point about the Government's position that the photo stats here would clear up the indictment and that if he goes back to trial, there will be available to you for whatever use and does that help the point about the indictment being not quite crystal clear?
J. Edwin Smith: I don't think that exhibit helps the indictment because I think you got to look at the indictment of what it says and this is something that --
Thurgood Marshall: I'm talking about what indictment says in the light of that?
J. Edwin Smith: I would say this that the indictment when it says that he is guilty of 1001 because he failed to answer a question; doesn't charge a false statement. I don't think you can be guilty before statement by not making man answer.
Warren E. Burger: Well, has anybody brought that question here?
J. Edwin Smith: I raised it in my brief.
Warren E. Burger: Well, but you can't raise it first in the brief. You must -- it must be raised in accordance with the established rules. You have a case here decided on the constitutional point, not on the insufficiency of the indictment.
J. Edwin Smith: Well, that was I believe Mr. Justice White makes another that a ball and I wouldn't be making the point about the jurisdiction of the Court, I was trying to answer this Court.
Warren E. Burger: But it shouldn't be focusing on the constitutional issue only here?
J. Edwin Smith: This point, they did not state in defense was raised in the challenges to the indictment at trial, but only constitutional question. I emphasize here that there was a court -- statute here of the Government of this man being required to file this return or if he didn't file it, being faced with prosecution, $10,000 fine and imprisonment. And here is the Government saying, you do this, you file this thing, you give us this incriminating information or we'll prosecute you for not giving it under 7203 and punish you with a $10,000 fine and imprisonment. If you come along and give us some incriminating evidence however and it's not quite true, we'll then prosecute you under the 1001.
Byron R. White: But -- when did he file , when did he file?
J. Edwin Smith: Back in 1964.
Byron R. White: When the Government was putting that kind of question on him why the obligation to file had been upheld in this Court?
J. Edwin Smith: That is correct and that's --
Byron R. White: So, while the Government -- do they have such dirty hands at that time?
J. Edwin Smith: Mr. Justice White, I think that the situation there was that the issue of compelling to give the incriminating information was being upheld in the situation of Kahriger-Lewis that this was one of the compulsive points that he is having to file that it was the rule that bore on his having to file or be prosecuted under 7203 for not filing.
Byron R. White: But Marchetti and Grosso, do you think they are retroactive?
J. Edwin Smith: I don't think this question of retroactivity because in this particular case, Knox has raised the issue at the very moment of the trial level of challenge the indictment, and this Court has held in Grosso and in Covington, I believe in Leary, Marchetti, all of those that this challenge raised by motion challenging the indictment is unquestionably timely. I believe that's expressed time at time by the authors of those opinions. And as to coercive, I think that this appeal here should be looked at if I may so suggest in the light of Garrity and Spivak decisions.
Warren E. Burger: Just how was he coerced here, would you clarify that for me? What forced him to file this statement?
J. Edwin Smith: I would suggest this if please Mr. Chief Justice Burger that here's a man that has a situation if he doesn't file this return, he is threaten to with criminal prosecution under Article 26, Section 7203 and --
Warren E. Burger: Well, isn't that coupled with something else if he doesn't file it and does something else affirmatively?
J. Edwin Smith: Well, I think his willful figure to file is the offense.
Warren E. Burger: Well, the filling station operators of grocers have to file this kind of a return, this kind of statement -- gas station operators?
J. Edwin Smith: This is applicable to a specific special class of people here like was mentioned to same-same group or the class.
Warren E. Burger: What kind of people are included in the class?
J. Edwin Smith: Sir?
Warren E. Burger: What people are included in that class?
J. Edwin Smith: Using this language, accused gamblers under these particular statutes.
Warren E. Burger: So, he isn't forced. He is only forced to file the affidavit if he wants to continue an unlawful activity, isn't that correct?
J. Edwin Smith: I believe this Court rejected that concept in overruling Kahriger and Lewis when they came with Marchetti and Grosso.
Warren E. Burger: I don't quite read those cases that way counsel, but you go ahead with your argument.
J. Edwin Smith: But the point I'm trying to make is this that under the rulings of Garrity and Spivak, he had the choice here either to file or to be prosecuted. In the Garrity case, I believe that this Court held that where the situation was such that you had the choice between losing your job or giving the incriminating information that that was coercion.
Warren E. Burger: Well, he really had the third alternative that you say it was rejected by this Court but which I don't read, he had the third alternative of going out of the illegal gambling business, didn't he?
J. Edwin Smith: Yes, he --
Warren E. Burger: He could've gone in to an honest profession?
J. Edwin Smith: He had the third alternative of course of not to gamble; I can -- understand that in filling this return. But at the same time in Garrity, they had the alternative of not continue to be a policeman. In Spivak, he had the opportunity of not continue to be a lawyer.
Warren E. Burger: But those are honest activities, isn't that something --
J. Edwin Smith: In some states, gambling is an honest and illegal activity also, but it declared in the state of Texas, he was not. This --
Warren E. Burger: My memory maybe wrong, as I recall it was a vigorous to say [Attempt to Laughter] this -- category the other case and I think he can raise that question, doesn't he?
J. Edwin Smith: I think Mr. Justice Black in Kahriger; you yourself said that the bill of Rights applied, but that the gambler has a right himself also to rely on the Bill of Rights, that's almost what you said verbatim and you just said incorrect. I believe or may that in just effect that one of you all said that inquiry.
Warren E. Burger: That was in dissent did you say?
J. Edwin Smith: I'm sorry.
Warren E. Burger: That was in dissent – in dissent, yes.
J. Edwin Smith: In dissent?
Hugo L. Black: I didn't dissent?
J. Edwin Smith: And as to the coercion phase of these particular statutes, I recall Mr. Justice Brennan in your concurring opinion in Grosso and Marchetti. I believe you comment that that the very purpose of these statutes was to coerce evidence – incriminating evidence from these people who filed these statements. And --
Byron R. White: We haven't got Grosso and Marchetti, we are not having a reargument on Grosso and Marchetti here, are we, having a review of something else – 1001?
J. Edwin Smith: 1001 and the point we are trying to make here is that the fact that the Grosso and Marchetti hold that the information that he gave here was required by an unconstitutional statute that --
Byron R. White: Well, let's assume it was?
J. Edwin Smith: Assuming that the statute was unconstitutional to file this information all that returns.
Byron R. White: And you say that therefore, you should not be convicted under 1001?
J. Edwin Smith: That's our argument, yes sir, that if the Government compels him to do something by this unconstitutional requirement --
Byron R. White: Can you seriously suggest that we could hold with you and not overrule Dennis?
J. Edwin Smith: Yes.
Byron R. White: How is that?
J. Edwin Smith: In the sense that in Dennis, Kay and Kapp; all of those were where the individual voluntarily went there and filed those applications for the specific purposes of obtaining benefits like in one of them to get a home loan, I believe it was in another one to -- has made a false statement of about value of his house --
Byron R. White: But it isn't a very -- you don't think it's very coerced if to say that unless you file, you got to lose your job?
J. Edwin Smith: The coercion here was unless you file, you'll be prosecuted under 26-7203, criminally prosecute.
Byron R. White: Yes, but the court's already also held that if threats to a -- threats to lose your job creates coercion too, when the labor union official is either filed or he lost his job as the officer.
Thurgood Marshall: Mr. Smith, how was the coerced into amended --
J. Edwin Smith: This Mr. Justice Marshall, I do not know because I must submit that I did not have knowledge of these particular forms that Government exhibits here in the appendix until the appellate level because amendment and not my client didn't filed that.
Thurgood Marshall: Certainly not.
J. Edwin Smith: But --
Thurgood Marshall: Either if coerce is to give them filing the amendment -- I mean filling the return answering the question or stop gambling, I originally asked you that, do you still say that --
J. Edwin Smith: And I think was coerce in doing one of the other you had to.
Thurgood Marshall: Well, let me make it a little more particular. Do you say that he was coerced and to commit a perjury, is that your position?
J. Edwin Smith: I was saying he was coerced into filing the return, now, the element of coercion in requiring him to file the informational return.
Thurgood Marshall: But where was he coerced to commit the crime of perjury?
J. Edwin Smith: He wasn't coerced to make the false statement assuming it was a false statement which I am not --
Thurgood Marshall: But don't we have to here assume that it is a false statement?
J. Edwin Smith: Well assuming it was a false statement.
Thurgood Marshall: Right. Well, how is he coerced to do that?
J. Edwin Smith: I would not say that he was coerced to false about it. I do not make that statement, I make the statement --
Thurgood Marshall: Well, don't you have to in order to prevail here?
J. Edwin Smith: I submit nor sir, Mr. Justice Marshall.
Thurgood Marshall: Why not?
J. Edwin Smith: I submit to this that when the Government requires an act in violation of its own fundamental law requires you to file a return that violates the Government's own constitution.
Thurgood Marshall: Then you're free in any crime you want to, including perjury?
J. Edwin Smith: May I illustrate by an extreme --
Hugo L. Black: -- answer that by saying on your assumption that you are free to commit any crime you want to if you call it a crime to take advantage of the Bill of Rights and not incriminate they say, and he either had to file the statement and admit that he was guilty or committed perjury. That's what the Government said, you are doing this you got to report it, and that so far as I am concerned be pretty good coercion to file it and maybe the Government has the right to coerce him into done it, but I don't see it can be argued that it did coerced of him to do?
J. Edwin Smith: And then you see that the coercion or the informational return must be aligned along with a 1001 to give true information as to his incriminating activities. And I might make these points in sort of emphasizing it and maybe too much, but I think it's mentioned in my brief. Assuming that you were coercing the man to make statement and as you -- as this Court did in the Garrity relates this to physical torture of illustration that you stretch him on the rack or you put him down with a thumb screw or something of that kind until he makes a statement. You coerce it by physical torture. But in trying to get relief from the physical torture, he makes some false statements in the answer that he give to the police. Under the analogy, I would ask the Government would they prosecute him under those circumstances for the false statement. And I think this Court has pointed out to number of opinions and Garrity I believe is the latest that there's not just physical torture, but the refinement at times of things. And when the individual citizen is faced with the issue of whether or not he filed one of his informational returns or as to drum the gamble of being prosecuted by United States District Attorney for not filing it and they -- prior to Grosso and Marchetti, they were filed everyday, every week by the hundreds over the country. I think that gets into a question of coercion and it's just as much coercion as there was in Garrity, it's just as much coercion as there was in Spivak in the situation.
Byron R. White: Of course, the Government's entitled or at least the court hasn't said yet the Government is not entitled to collect the tax, has it?
Hugo L. Black: No, I'm not arguing that here Mr. Justice White.
Byron R. White: Well, but he filed and said he had three employees instead of five?
J. Edwin Smith: But this Court has --
Byron R. White: To make --
J. Edwin Smith: Excuse me.
Byron R. White: I mean it maybe that the Government at least claims that he had five employees instead of three. Now, I suppose the Government that one the collect the tax from him might say, well, I guess he only owes for three?
J. Edwin Smith: But --
Byron R. White: He had to file it all --
J. Edwin Smith: Let me make this point or maybe or maybe it'll help answer the issue you're raising. When assuming this case came on for trial on the merits and these informational returns that they brought up here and exhibited it the first time on appeal or offered in evidence, and he raises the objection there that they are not admissible because they were extracted from the file in violation of the Fifth Amendment, and the Court I -- under the ruling that this Court has handed down in Garrity, I submit would be legitimately authorized in excluding them from evidence. And under those circumstances even those circumstances, we submit that --
Byron R. White: We have to cross the evidence should be --
J. Edwin Smith: Sir.
Byron R. White: Even if we reversed the [Inaudible]
J. Edwin Smith: I was going to present the practicality of the situation where I believe was pointed out in Grosso and I believe in Covington that when maybe in Garrity also that when the evidence would not be available that you could take it and deal with it on appeal here at this Court to conclude it under the substantial justice of the case. And under that of course, this is not a situation that all acts involved in Bryson or the case that was argued here just before, this is not a matter of retroactivity. We have raised this issue from the inception and that we submit that it's a ripe for decision and that the -- this also gets back in a way to this Court's order opinion in Boyd versus United States which is reemphasized in Garrity and the Spivak of situation where the -- when the Government by unconstitutional means causes a man to do something or forces him to do something, they required him to do this under criminal sanctions. And I think that distinguishes this from Dennis and Kay and Kapp and that line of cases that those cases did not have the criminal sanction of saying that in the very inception, you got to come and do this. And I think this Court could well I affirm the court below that in no way overruled Covington rules because this man has standing here in the sense that he has brought this issue from the inception of the trial. And in all of your decisions this Court has held that the issue is timely when raised to challenge to indictment of issues. I might advert in concluding make one sort of answer of the report that this Court has repeatedly held that the false statements statutes were enacted for the purpose of protecting the Government's -- authorize, the authorized function of Government, I believe the way it expressed in [Inaudible], I submit that that the extraction of incriminating evidence from citizens is not an authorized function of Government. And there are numbers of cases by this Court where you have held that when the Governmental official took an oath or required an oath or the tribunal requiring the oath was not authorized to require the oath, that there could be no charge of perjury, the cases such is that Christopher, the Baird case, United States versus George, United States versus Williams and Robinson.
Hugo L. Black: You have those cases cited in your brief?
J. Edwin Smith: On page 10 under Section 3, page 10. The Internal Revenue [Inaudible] was forbidden by the constitution to require this information. Now, the Fifth Amendment was forbidden as you have held in Grosso and Marchetti. Consequently, those cases are Christopher versus United States, Baird versus United States, George versus United States are applicable because if they had no constitutional authority to require the information that's stronger, then, if they had no statutory authority to require it. At one time had a purported statutory authority to do require it, but this Court has said, the constitutional overrode that and took away that jurisdiction from them and it's settled law by this Court under those circumstances that where like in the Christopher case where there was not a forum at the time a man gave false testimony before constitutional -- I mean before a congressional committee when there was not a forum co-existing at that time. They said, false statements made there cannot be the basis of perjury and we submit to that where that the situation here where the constitution forbade the Internal Revenue Service to get this information that they had no authority to get it. Just like in Christopher, the congressional committee at that particular time when there was no forum present had no authority to get the information, that there can be no basis on those circumstances of a charge of perjury of false statement. Unless this Court has another question I submit that's -- I believe my time is about up in there.
Warren E. Burger: Thank you Mr. Smith. Mr. Hamburg.
Mervyn Hamburg: I'll be very brief Your Honor because most of the matters which been raised here are replied to in our reply brief, particularly, the question of the constitutional nature of the wagering tax laws as the Marchetti and Grosso decisions themselves expressly state the wagering tax laws have not been held to be unconstitutional. And therefore, there is still authority in the Government to require individuals to submit wagering tax returns admittedly if they will incriminate the individual, they may respond to this requirement by not complying and by -- thereby if prosecuted raising the privilege against self-incrimination, but he has no constitutional license to lie if he purportedly complies with the wagering tax scheme. The counsel has mentioned something about differentiation here between this case in Dennis on a matter of this defendant not receiving any benefits from wagering tax scheme. We submit that first of all benefits – receipt of benefits is not an element of the False Statements Act. It has been since 1934 when the present wording was adopted and secondly that we perceive some benefit to be derived by under stating the number of employees one has in any event. And finally, we submit too that requiring returns is a definite function of the Internal Revenue Service -- a number of returns are required. This one is required by particular statute which gives the Internal Revenue Service jurisdiction to require this particular return and once again, or whether or not this it so, the statute now before this Court is the false statement statute, and whether this individual should be prosecuted under the false statement statute. If there are no questions --
Warren E. Burger: Thank you Mr. Hamburg. We -- the case is submitted. We thank you for your submission Mr. Smith.


William H. Rehnquist: We'll hear argument now in Number 96-1768, C. Elvin Feltner v. Columbia Pictures Television. Mr. Roberts.
John G. Roberts, Jr.: Thank you, Mr. Chief Justice, and may it please the Court-- In this case, a district judge determined that Mr. Feltner should pay Columbia Pictures 8.8 million in statutory damages for a copyright infringement. Before arriving at that figure, the judge held a bench trial, after which he made the factual finding that Mr. Feltner's conduct was willful, which increased the amount of damages which could be awarded under the statute. In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits. Before reaching that constitutional question, however, we need to consider whether the statute may be construed to afford a jury trial right. It may be. First, the first Federal statute providing statutory damages in an amount "as to the court shall appear to be just. " the 1856 act, also provided that those damages should be recovered in an action on the case, a prototypical legal action for which a jury would be available. Statutory damages as to the court shall appear to be just, the samel terminology as employed in the 1856 act, were carried forward in successive acts up to the 1909 act, when the statutory damages provision took its modern form, with no indication that Congress wanted to delete the jury trial right that was so clearly present in 1856.
William H. Rehnquist: The concept of statutory damages has changed some, has it not, from 1856 to 1909?
John G. Roberts, Jr.: Certainly--
William H. Rehnquist: The guidelines, or whatever you want to call it.
John G. Roberts, Jr.: --Yes. It has been... it was expanded significantly in 1909. The range was expanded and the 1856 act applied to dramatic compositions. The 1909 act applied more generally. But that same language, as to the court shall appear to be just, carried through all the different statutory provisions.
David H. Souter: I take it in the '56 act there was no opportunity to elect a different damage scheme after verdict but before a judgment as there is in the current act.
John G. Roberts, Jr.: That's right. That's one of the distinctions added in 1909 from the 1856 act.
David H. Souter: So if we followed your reasoning in this case, as I think your opponents have pointed out, we would have to accept as a consequence that a jury could render its verdict on actual damages, be discharged, go home, and at that point the election could be made to go for statutory damages, and I don't know what happens then. I guess the jury would have to be called back on your theory.
John G. Roberts, Jr.: That's a false problem. It's never been a problem in the courts that have recognized the jury trial right so far. All the judge needs to do--
David H. Souter: But it could happen, couldn't it?
John G. Roberts, Jr.: --I don't think so. All the judge needs--
Speaker: Why?
John G. Roberts, Jr.: --to do is to say to the plaintiff, when the jury comes back, I'm going to enter judgment promptly upon their verdict and therefore they'll be there. If the plaintiff says I want to elect statutory damages--
Speaker: Well, if--
John G. Roberts, Jr.: --the jury would not have been sent home by that point.
Anthony M. Kennedy: --And at that point do you tell the jury... and this is a problem that I have that runs through the whole case as to what the judge tells the jury. Would it suffice if the jury is told, render such damages as you consider to be just?
John G. Roberts, Jr.: Well, I think the jury would be instructed according to the factors it's supposed to consider, as juries are, for example, in awarding punitive damages.
Anthony M. Kennedy: I looked in Devitt and Blackmere to see if there were any instructions on statutory damages. There are not. The common law measure is there. I'm just not sure what the judge tells the jury. I'm not sure also which way that cuts.
John G. Roberts, Jr.: Well, the courts have developed guidelines of what is appropriate to consider, whether it's a jury or a judge, in awarding statutory damages, the amount of loss, the value of the copyright, profits--
Anthony M. Kennedy: Those are all set forth in Nimmer and in the brief, amicus brief filed by the Composer's Association and again, I'm not sure which way that works. It... on the one hand it seems to me that this is an area where we should develop uniformity and consistency and judges would be helpful. I suppose your answer to that is that a set of jury instructions developed over the years could do the same thing.
John G. Roberts, Jr.: --Well, just as with the case of punitive damages, which is an amount of damages left largely to the discretion of the jury, there have developed instructions as to the factors they should consider, and likewise--
Sandra Day O'Connor: None of which have been effective. It's been a serious problem. But this copyright law is so odd, because under your version, then, a jury would go out and could determine actual damages and come back with a verdict and a figure and then the plaintiff can say, well, I've looked at that, I think I'd do better under statutory damages and can reject that and ask for statutory damages.
John G. Roberts, Jr.: --That's true whether a jury or a judge is making that initial determination, so that concern I think doesn't really cut one way or the other on the question of whether--
Speaker: Mmhmm.
John G. Roberts, Jr.: --the jury or the judge reaches that conclusion. They are unusual in that respect.
Sandra Day O'Connor: Now, in the Tull case from this Court we upheld a scheme under similar Seventh Amendment type concerns and said the judge could nonetheless determine statutory damages.
John G. Roberts, Jr.: Well, the holding in Tull is first of all that that is a legal action, the civil penalty action. The court analogized to civil penalty actions in the Eighteenth Century, said they were legal, noted that the nature of the remedy, punishment was legal, and then at the very end said, but the actual amount is for the judge. Now, here--
Sandra Day O'Connor: Well, maybe that would be true here.
John G. Roberts, Jr.: --If it is true here, then the judgment needs to be reversed because, of course, this judge didn't just determine the amount of damages. He made a factual finding of willfulness under the statute. That's something that if this is a legal action--
Sandra Day O'Connor: Well, I assume the willfulness aspect could certainly go to a jury if that were the Court's decision, but what would your position be on the balance?
John G. Roberts, Jr.: --Well--
Sandra Day O'Connor: Because there still is a discretionary element there, a range of sentences.
John G. Roberts, Jr.: --There is a discretionary element and Tull, I think, should be limited to the civil penalty context in which it arose for a number of reasons, first of all because that aspect of the holding was dicta in Tull as a technical matter. The question of who should determine damages wasn't before the Court, because the Court had reversed on liability. It may not have been necessary to reach that question at all. That's a technical point. But the more substantive one is that if you go back and look at the briefing in Tull, it was devoted almost exclusively to the question of liability, very little discussion of the question of damages at all and, whatever may be the case with respect to civil penalties prior to 1791, when damages were not fixed, juries decided damages.
Anthony M. Kennedy: And the distinction is that in Tull the Government received the money and that makes it a governmental type of penalty and here the private individual--
John G. Roberts, Jr.: Well, the distinction--
Anthony M. Kennedy: --The owner of the copyright receives the money and therefore it's not a penalty.
John G. Roberts, Jr.: --The distinction goes back to the 18th Century practice in England. When damages were not fixed, juries set the amount of damages, so if Congress has not fixed the amount of damages in a copyright action, they should be set by juries under this Court's precedent.
Anthony M. Kennedy: Well, but they didn't fix them in this Clean Water Act, either, under Tull. I'm asking.
John G. Roberts, Jr.: I don't think there was any evidence of juries--
Anthony M. Kennedy: I know we have a problem with Tull for your case and you want to limit it and you indicated it's a penalty, but can't you look at the statutory damages also as a penalty, and so I ask, does the--
John G. Roberts, Jr.: --Well, they--
Anthony M. Kennedy: --identity of the recipient determine... is that what your distinction's based on?
John G. Roberts, Jr.: --Well, that's part of it, and also in the civil penalty action you have an analogy to criminal sentencing where a judge determines the sentencing. That analogy doesn't apply in this case because this is a private right... it's not a public right... a private action between two parties and the core of the analysis, though, although I think Tull can be limited in that way and its statement is dicta, the core of the analysis shouldn't be extended because it can't be defended. The idea that although Congress fixed the... when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment. The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that's not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play, so that logic in Tull, I think, should at the very least not be extended any further.
Stephen G. Breyer: Is there any evidence who set the... in... under the Statute of Anne in the 18th Century it was a penny a sheet or something, I think, in damages.
John G. Roberts, Jr.: Yes.
Stephen G. Breyer: If there was an argument about how many sheets there were, did the jury decide it or the judge, do we know?
John G. Roberts, Jr.: The jury, cert jury. We've cited cases to that effect I believe on page 43 of our brief.
Ruth Bader Ginsburg: But Mr. Roberts, in this case on that very point that was the one piece of it that I noticed... and you said willful or not goes to the jury and how much goes to the jury, but in this case, it may not be the case generally, it seems to me that how many infringements was ruled on as a matter of law. Didn't the judge rule on it even before his bench trial?
John G. Roberts, Jr.: It's very confusing. He did not. At the start of the bench trial he said that the issues remaining for trial were how many infringements were involved and were they willful, and what should the damages be, so at the very outset at least, he thought that was an issue for trial. Later on, he also said he wanted to hear about how many infringements were involved. Later on, he said he was ruling on it as a matter of law.
Ruth Bader Ginsburg: But aren't those questions... whether each series is a... each one episode in a series is a separate work, it sounds to me like that's a legal question. Is it--
John G. Roberts, Jr.: Oh, it's a mixed question of law and fact. It depends... and the legal standard was correctly stated. It depends upon whether each episode has what's called an independent copyright life, an independent economic value, and that's a question of fact. You take evidence on that. How was it copyrighted? How was it produced? How was it marketed? Would the television station show just one episode of a series or not? There are factual issues involved in that and then a legal standard to be applied, and we think what should have happened is that the jury should have been able to determine those facts based on proper instructions of the... what the legal test was.
Ruth Bader Ginsburg: --Do you say the same thing about the two stations, whether they were--
John G. Roberts, Jr.: Yes.
Ruth Bader Ginsburg: --separate entities?
John G. Roberts, Jr.: It's not just a question of whether they were separate entities, but whether they were jointly and severally responsible for the infringement, because the statute allows only one award of statutory damage for all individual or joint and several infringements of each work.
Ruth Bader Ginsburg: So you say if this judge ruled on those two questions as a matter of law that he was wrong.
John G. Roberts, Jr.: Yes. That... those should have been submitted to the jury and, as I say, there's some confusion as to what he did. It's hard to tell.
Antonin Scalia: You're not saying that in principle they could never be ruled on as a matter of law.
John G. Roberts, Jr.: Oh, no.
Antonin Scalia: I mean, the facts could be so clear that no reasonable jury could find the factual element except one way.
John G. Roberts, Jr.: The normal rules--
Antonin Scalia: You assert that's not the case here.
John G. Roberts, Jr.: --The normal rules about directing verdicts and taking issues away from juries I think apply.
Ruth Bader Ginsburg: That happened on the infringement question.
John G. Roberts, Jr.: Yes. Infringement was settled on--
Ruth Bader Ginsburg: That was summary judgment.
John G. Roberts, Jr.: --On summary judgment.
Ruth Bader Ginsburg: But you don't think that this question, how many, could be summary judgment, too, but you say it wasn't in this case.
John G. Roberts, Jr.: I think it was not in this case. I do think it's difficult to tell when you have the judge acting both as factfinder and as ruler of law when he's saying based on these facts I'm making this decision, or I'm making this decision as a matter of law and it's also difficult, when that same judge has made a ruling on summary judgment, to tell, is he saying based on the evidence at trial, or I saw this evidence before on summary judgment. So there is some ambiguity in the record, but I think the jury should have been instructed on the number of infringements, as the judge indicated was an issue available for trial at the outset. And the court of appeals seemed to think that that was decided at least as a mixed question. It referred to the judge's findings and whether or not they were erroneous, rather than treating it as a legal ruling. Now, the first step in this Court's constitutional approach is to find an analogue to this action in 18th Century practice and ask whether that's legal or equitable. The analogue to modern actions for statutory damages for copyright infringement is the 18th Century action for statutory damages for copyright infringement under the Statute of Anne, under the first Federal copyright statute passed 1 year before the Seventh Amendment by the same Congress that passed the Seventh Amendment, and those statutes provided for recovery of amounts and specified that they should be recovered in an action at law.
Anthony M. Kennedy: As I understand it, after the Statute of Anne, the... if a copyright owner thought the damages were a little too small, so he preferred often to go into equity to get an injunction.
John G. Roberts, Jr.: Yes.
Anthony M. Kennedy: When he did that, could he also get damages?
John G. Roberts, Jr.: He had to go in a separate proceeding at law to get damages.
Anthony M. Kennedy: Could not get damages on the equity side.
John G. Roberts, Jr.: Not in equity, no.
Anthony M. Kennedy: Do you... is there a citation for that in your... I--
John G. Roberts, Jr.: Well--
Speaker: --It sounds to me right, but--
John G. Roberts, Jr.: --Millar v. Taylor I think is the best that I can come up with, which is--
Speaker: --The Millar case.
John G. Roberts, Jr.: --After the Seventh Amendment was adopted. It discusses the history.
Anthony M. Kennedy: But that was overruled, basically, by the statute... well, all right, thank you.
John G. Roberts, Jr.: Overruled by the House of Lords in Donaldson but not on that question. It was the question of whether common law copyright survived the Statute of Anne. Another thing that--
Ruth Bader Ginsburg: But in the fullness of time didn't equity clean up? I mean, the cleanup doctrine that if there were damages... the main thing was injunctive relief, but you could incidentally collect damages.
John G. Roberts, Jr.: --Up until Beacon Theatres and Dairy Queen.
Ruth Bader Ginsburg: Yes, but there was... you didn't have to bring a separate action at law under the cleanup doctrine.
John G. Roberts, Jr.: Under the cleanup doctrine, but in Beacon Theatres the Court noted that that could not be used to deprive a party of the right to a jury trial. Now--
Ruth Bader Ginsburg: But the judge could no longer set the order of trial.
John G. Roberts, Jr.: --That's right, that ruling on the injunctive aspects couldn't deprive a litigant of his right to a jury trial on the legal aspects, and the legal aspects plainly included the right to statutory damages. Now, the statutory damages have changed since then, as was pointed out. The main difference is the modern version gives you a range, and these 18th Century precedents we've been talking about are primarily fixed amounts. That is not a distinction that makes a difference. The Government made that same argument in the Tull case in footnote 7. It said those 18th Century civil penalty actions were for fixed amounts and this, the Clean Water Act is for a discretionary range. The exact words of this Court are, we do not find that distinction to be significant. In addition, there were statutory damages--
Anthony M. Kennedy: Isn't that inconsistent with the argument you made earlier that Congress sets the amounts?
John G. Roberts, Jr.: --Sets the--
Anthony M. Kennedy: I thought you... we were talking earlier about how to distinguish or confine Tull and you said, well, the Congress sets the amounts.
John G. Roberts, Jr.: --In--
Anthony M. Kennedy: But the Congress there set a vast range, and it's... which is very much like the statute we're involved with here.
John G. Roberts, Jr.: --But the argument in--
Anthony M. Kennedy: And--
John G. Roberts, Jr.: --In Tull was, because Congress had fixed the amounts earlier they could delegate that to a judge. Here you had in the 18th Century fixed amounts under the Statute of Anne, under the first Federal copyright statute, but also a situation where you could get damages for copyright infringement that weren't fixed by Congress and whenever they were not fixed by Congress, those were for a jury. I don't know that that situation was replicated with respect to the civil penalty actions of the sort at issue in Tull. And it's also the case here we had 18th Century preSeventh Amendment statutes providing for a range of statutory damages. Statutes in Massachusetts, New Hampshire, and Rhode Island provided for the recovery of statutory damages within a broad range, so therefore that basic distinction, the difference between fixed and range, doesn't make a difference with respect to characterizing the action. The second step in this Court's constitutional analysis is to look to the nature of the remedy. Here, the remedy is money damages, the hallmark of legal relief, and this Court has said that monetary damages are legal and require a jury except in two very specific, defined circumstances, when they constitute restitution or disgorgement, and when they're incidental to or intertwined with equitable relief. The first certainly doesn't apply here. Restitution is one of the factors that the jury can consider in setting the amount of damages, but it's not the only one. They also can look at punishment and compensation, traditional legal remedies, and those legal remedies give the right to a jury. Again, this is another argument that was made in Tull. The Government argued there the purpose of the Clean Water Act penalties is restitution. Therefore, this is equitable. The Court said no, the purpose is also punishment. Punishment was one of the purposes. That's a legal remedy and therefore this is a legal action. The modern statutory damages serve the legal purposes of punishment and compensation. You can see the punishment aspect in the fact that you get a broader... a higher range for willful, a lower range for innocent. You can see the compensatory aspect in the fact that these damages are instead of actual damages. You don't get both because they serve the same purpose, provide some recompense for the copyright holder.
Ruth Bader Ginsburg: --What about the argument that actual damages may be hard to prove and so because the legal remedy is inadequate, actual damages, so you have this alternate of the statutory damages, so doesn't equity come in when the legal remedy is inadequate. Isn't that the basic reason for equitable--
John G. Roberts, Jr.: That is the basic prerequisite for equitable relief and it's not specified here. Here, statutory damages are available at the election of the plaintiff for whatever reason or no reason. He does not have to show that legal... actual damages or legal remedies are inadequate. Second of all, the fact that that's one of the reasons you have this relief doesn't make it equitable. Parties frequently provide liquidated damages in contracts because they think it will be difficult to prove actual damages. If you sue for liquidated damages in a contract it's still a legal action for which a jury is required. That's the reason you had the fixed penalties in the Statute of Anne, because actual damages were difficult to calculate and yet the respondent agrees that that was a legal action to recover those damages.
Stephen G. Breyer: --Perhaps you've said this, but it would be helpful if you could just summarize in a sentence, possibly. If you take Tull, you know, and look at part 3... you know what I'm thinking of.
John G. Roberts, Jr.: Yes.
Stephen G. Breyer: All right, and then suppose someone were to say, well, that seems to describe this case, you would say, no it doesn't, and the main distinction that you would make between part 3 of Tull and this case is?
John G. Roberts, Jr.: Well, the main distinction is that Tull--
Stephen G. Breyer: Or two if you'd like, or three, but I mean, I'm just trying to get the heart of what you--
John G. Roberts, Jr.: --Tull is a... Tull first of all is an action by the Government for civil penalties. This is an action between private parties for damages. At common law, when damages were not fixed, as they're not here, juries determined the amount of damages, whatever may have been the case with respect to civil penalties. In Tull, I think--
Anthony M. Kennedy: --I don't want to interrupt Justice Breyer's colloquy with you, but you're talking about two things. You're talking about the identity of the recipient and the... whether or not the amount is fixed and it seems to me that the latter doesn't help you here, because Justice Breyer I think implied that the range of penalties that Congress sets under the Clean Water Act in Tull look very much like the range that it is setting here.
John G. Roberts, Jr.: --The difference is that under Tull and the Clean Water Act the Court couldn't... wasn't provided with and didn't find any analogies in the 18th Century where there was a similar range and you got a jury. Here we have that. The three State statutes I mentioned provided a range prior to the adoption of the Seventh Amendment and they said, you recover this range in an action of debt, an action at law. So whatever may be the case, and under the Seventh Amendment you need to look at the particular actions and the historical analogues, whatever may be the case with respect to civil penalties, the analogue here is there prior to the adoption of the Seventh Amendment and it was an action at law. But with those distinctions of Tull in mind, again, the basic core of the reasoning should not be extended. When damages were uncertain, that was when the juries were needed most. This Court said so in Barry v. Edmunds. Where no precise rule of law fixes the reasonable damages, it is the peculiar function of the jury to determine the amount. That was the rule at common law, Lord Townshend's Case, the jury are judges of the damages, and that is what this Court held with respect to the Seventh Amendment consistently, at least prior to Tull. That's why we don't have additur or unconditional remittitur, because it's for the jury to determine the amount of damages. That's the rationale in Chief Justice Marshall's opinion in Bank of Hamilton. The statute there said you could be evicted, but you were entitled to compensation for improvements, improvements will be set by commissioners, unconstitutional under the Seventh Amendment. Juries set the amount of damages. Now, that body of precedent with respect to damages is wellestablished. The body of precedent with respect to civil penalties may well be different, but the Court noted in Tull, for example, that it had been presented with no evidence that the Framers were concerned that the jury trial right extend to the question of remedy, and that's right. If you go back and read the briefs, the evidence isn't there, but the evidence is there in the real world. The amount of damages was a critical component of the jury trial right. The episode in New York in 1764 that figured in the ratification debates involved solely a redetermination of the amount of damages set by the jury.
Stephen G. Breyer: Is the history of it that in England the amount of damages wouldn't have been an issue in terms of amount in respect to the... because the Statute of Anne says a penny a page, but in the United States your point is that some States did make it a jury issue?
John G. Roberts, Jr.: Well, that point--
Speaker: A lot of States, perhaps.
John G. Roberts, Jr.: --That point, but also another one, Your Honor.
Speaker: What?
John G. Roberts, Jr.: And that is that there are other situations where damages for copyright infringement were not set. For example, if you're seeking damages with respect to an unpublished work, then a jury would determine those amounts. Under--
Speaker: But that's a different--
John G. Roberts, Jr.: --Under section 504(b) if you're seeking actual damages a jury would determine that amount. There are situations where the damages are not fixed and in those cases there's no question that it would be for a jury to determine, so whatever the force of Tull with respect to civil penalties, they don't apply to the copyright infringement area.
Stephen G. Breyer: --What about if... suppose a person brought in the 18th Century an action for an injunction and coupled it with a request for damages?
John G. Roberts, Jr.: I believe that the action for damages had to be filed separately in a court of law. It couldn't be joined with the equitable action for an injunction.
Ruth Bader Ginsburg: But we've already agreed that, as equity emerged, you could combine the two. You could clean up, you could get damages if you... the main thing that you want is... in the--
John G. Roberts, Jr.: Well--
Ruth Bader Ginsburg: --Until Beacon and Dairy Queen--
John G. Roberts, Jr.: --Yes.
Ruth Bader Ginsburg: --that was routine. You could go into equity and say, by the way, equity cleans up, clears up, so incidentally, award me damages.
John G. Roberts, Jr.: Yes, and Beacon Theatres and Dairy Queen pointed out the flaw with that line of reasoning, which is it was depriving the parties of their right to a jury trial through the conduct of the litigation and you could not go and get both in a single action in equity in England. Now, with... the State precedent here I don't think should be dismissed as simply the American practice as opposed to the English practice. The Court is concerned about looking to practice here because they don't want to rely on idiosyncratic practice, but there's no evidence here that the statutes in New Hampshire and Massachusetts were in any way inconsistent with English common law. There were three of them, which suggests that they were not aberrational at all and the language was perfectly consistent with all the other statutes that were provided at that time, all of which providing relief at law, with the difference that they provided it within a range.
Ruth Bader Ginsburg: Mr. Roberts, correct me if I'm wrong, but I thought that the cleanup doctrine originated in England and we... our law developed in the same way.
John G. Roberts, Jr.: I think it did originate in England. I don't know when. But again, my reading of Millar v. Taylor is that you couldn't get damages for copyright infringement in an action brought at equity. You could get your injunction, then if you wanted damages you went in a separate action at law.
William H. Rehnquist: Well, at any rate the test is what was the practice at the time of the adoption of our Constitution, isn't it?
John G. Roberts, Jr.: Yes.
William H. Rehnquist: Not what became the practice later.
John G. Roberts, Jr.: Yes. If I could reserve the remainder--
William H. Rehnquist: Very well. We'll hear from you, Mr. Tashman.
Henry J. Tashman: Mr. Chief Justice, may it please the Court-- Congress enacted statutory damages in 1909 as an alternative to actual damages to provide some recompense to copyright holders. Congress did this because it recognized that actual, legal damages were frequently difficult, if not impossible to prove and therefore did not provide an adequate remedy. Statutory damages were later amended and expanded in 1975 and in 1988. The formulation of an alternate form of relief where legal damages are inadequate is quintessentially an equitable remedy. Moreover, statutory damages require and involve the exercise of nearly unbridled discretion by the court and an appeal to the court's sense of justice based upon the particular facts in an individual case to fashion a remedy that is both just and consistent with the goals of the Copyright Act.
David H. Souter: Did the Tull footnote 7 in effect say that's not a consideration that should influence--
Henry J. Tashman: No, it didn't. I think the Tull footnote 7 said that the Government's argument regarding discretion was in a sense trumped by the fact that what we were dealing with in Tull were punitive damages, or a punitive statute and that was the more important consideration in Tull and the Court correctly stated in Tull that punitive damages and penalties were the exclusive province of the courts of law and not the courts of equity. However, statutory damages, and by that I mean the damages in the 1909 and 1976 act, are not punitive damages and this Court has so ruled in the L. A. Westermann case. The primary purpose of statutory damages is to find some method of recompense to the copyright holder, given the inadequacy of the legal remedy of actual damages.
Ruth Bader Ginsburg: --Mr. Tashman, if I follow your argument correctly, then if a copyright holder comes in at the outset and says, I want the court to find that there has been an infringement and I want statutory damages, I don't want any other kind of damages, could such a plaintiff then avoid having a jury trial on the question of infringement? On your theory, I take it yes.
Henry J. Tashman: Absolutely. I would characterize statutory damages as an equitable action and an equitable proceeding, just like an action for an injunction and, as in an action in an injunction, all the issues, including the issue of infringement, would be for the court and in a similar fashion, if only statutory damages were sought, which is quite possible under the current act, in the 1976 act, then all of the issues, including infringement, would go to the court. Now, in this case statutory damages were not elected until after the court granted summary judgment both on copyright liability and also the number of infringements which were involved. The court held--
Ruth Bader Ginsburg: There seems to be a debate about what... the number of infringements, whether that was, in fact, a summary judgment--
Henry J. Tashman: --Oh, there's no question about it. The only question that I think is subject to some debate, and even that is really not subject to serious debate, is not the number of broadcasts, because that was either found by the court or stipulated to, but the number of... or the number of series that were broad... the number of episodes which were broadcast because, again, that was stipulated.
Ruth Bader Ginsburg: --But whether each episode counts as a work.
Henry J. Tashman: Correct.
Ruth Bader Ginsburg: Mr. Roberts said that is a mixed question of law and fact.
Henry J. Tashman: It is, except in this case there was no dispute as to the facts, and we don't dispute the facts. There was no dispute at trial that the series are sold in a single contract. There was no dispute at the trial that the stations are free to broadcast any number of the... of these episodes, but in this case it was stipulated to that each and every one of the episodes was broadcast between two and three times on a separate date.
Ruth Bader Ginsburg: Well, I don't want to distract you with a question that would be peculiar just to this case, but I think you have made an important clarification that in your argument statutory damages are just like injunctive relief, so if you come into the court and say, all I want is an injunction, then the infringement will be determined by the court as well. Similarly here, if the copyright holder says, I want to have those statutory damages and so, please, no jury to say whether the defendant infringed or not.
Henry J. Tashman: Yes, I think that would flow once the court, or if the court characterized the statutory damages as an equitable remedy and an equitable--
Sandra Day O'Connor: Why didn't the-- --That's difficult to do, isn't it? I mean, in an injunction the question for the court is whether certain conduct should be prohibited or not and here, in the statutory damages, there is a range of options for the imposition of the damages and there's a certain amount of discretion involved in fixing the amount within the possible range, is there not?
Henry J. Tashman: --Well, there's a huge amount of discretion involved.
Speaker: Yes.
Henry J. Tashman: And that--
Sandra Day O'Connor: And that is a typical question that a jury would address and certainly, if you look to the common law antecedents, that's the kind of thing that in the copyright area would have been determined by a jury.
Henry J. Tashman: --Well, I have to agree with... I have to disagree with Your Honor on two counts. First, as to the practice at common law, under the colonial statutes and under the 1790 act as well, the... well, let me focus on the 1790 act first. The jury played no role whatsoever in determining the amount of damages. The only thing the jury determined was whether or not there was an infringement and the number of copies in the possession of the infringer and, once those two facts had been determined, damages were calculated arithmetically by multiplying the number of works in possession by the 10 cents a page, or whatever. So if we look at the state of the world just prior to the passage of the Seventh Amendment, the jury really had no role in calculating the amount of damages.
Sandra Day O'Connor: Well, it surely would have had a role in determining what later emerged to be an element of willfulness and the extent of the violation and how many pages, or how many events occurred.
Henry J. Tashman: Well, I'm afraid I have to disagree with Your Honor again. Willfulness is a concept that is completely alien to copyright infringement at common law and, indeed, it's completely alien to copyright infringement until 1978.
Sandra Day O'Connor: Oh, but it's a concept that is very familiar at common law in all kinds of criminal and tort law situations. That's a typical determination by a jury, is something intentionally done, or willfully done.
Henry J. Tashman: That is certainly true.
Sandra Day O'Connor: That lends itself to jury determination very readily.
Henry J. Tashman: Unlike the assessment of statutory damages within a range, which involves a huge amount of discretion and this discretion is really entirely different from the discretion that a jury uses in trying to ascertain the appropriate amount of actual damages.
William H. Rehnquist: How about punitive damages? A jury has extraordinary discretion there.
Henry J. Tashman: Well, it certainly has more discretion than it does in determining actual damages, but for example, the jury cannot, and it would be error for the jury to take into account the conduct of the attorneys and the conduct of the litigants in bringing the litigation and how they conducted the litigation and yet these are factors that courts have taken into account in determining the amount of statutory damages. Also, I think juries--
Antonin Scalia: You think that that would be impossible under punitive damages, if the jury thought that the defendant in the case knew that it was guilty and had conducted a rear guard action of obstructionist litigation and so forth? I'm not sure a jury--
Henry J. Tashman: --Well, I--
Antonin Scalia: --couldn't consider that for punitive damages.
Henry J. Tashman: --I believe there are cases which have held that it would be reversible error for the jury to consider the conduct of counsel at trial and that that conduct has been considered--
Antonin Scalia: Oh, I'm sure just an isolated, you know, piece of rudeness or something like that, I'm sure that would be the case. You think that could be taken into account here?
Henry J. Tashman: --If statutory damages... absolutely. The courts--
Antonin Scalia: Really?
Henry J. Tashman: --The courts--
Antonin Scalia: The jury thinks counsel were rude to the judge--
Henry J. Tashman: --No, no, in statutory damages courts have used the cooperation or lack of cooperation and the manner in which counsel have conducted themselves at trial as a factor in determining the appropriate amount of statutory damages.
Stephen G. Breyer: --Is... I just wonder, can I go back for a second to your answer to Justice Ginsburg. Could you explain to me very briefly, as... perhaps I haven't a clear view of Tull, but Tull was a case that I thought gave you support and, as I understood the case, it would have said that the action for damages, a penalty in that case, is, in fact, legal and therefore the plaintiff or a defendant, there would be a right to a jury trial, but then it talked about the assessment of the amount of the penalty and, as far as the assessment of the amount of the penalty was concerned there was no Seventh Amendment right. Now, if that's... if I'm reading it correctly, then in this case it would suggest that even if... I take it you'd have to say and even if. Even if the claim is legal and therefore there is a right to a jury trial to determine whether or not statutory damages is due, there is under Tull nonetheless no jury trial right as to the amount of the damages. Now, is that a correct reading of Tull? Is Tull applicable in that way? Are you going to disown Tull, or what is it you want to do about that?
Henry J. Tashman: Well, I'm very happy about Tull and I certainly don't want to disown that case. Tull I think is controlling. In the event that the Court finds that statutory damages are a legal remedy, our initial threshold argument is that statutory damages are not legal but are equitable. Tull is not consistent with that. Tull found that the civil penalties in that case were legal.
Stephen G. Breyer: That's right. Now, I want to know what happens if I think, hypothetically, that this is a legal remedy, statutory damages.
Henry J. Tashman: Right.
Stephen G. Breyer: At that point, is that the end of the matter, or are you saying that indeed, even if that's so, given part 3 of Tull, the judge may or Congress may give the judge the power to assess the amount of the penalty?
Henry J. Tashman: Well, we are arguing that this is equitable, but in the event that the court rejects that and finds that it is legal, we are clearly arguing that, based upon Tull and based upon the second prong of the test in the Court's recent decision in Markman, that it would be entirely appropriate for the Court to assess the amount of statutory damages.
William H. Rehnquist: But then you would lose under-- --But if it were legal, then you'd have the right to a jury trial on infringement, I take it.
Henry J. Tashman: Correct. So... I'm sorry.
Ruth Bader Ginsburg: And also on... if all you have in your corner is Tull, then you lose on infringement, you lose on willful, or innocent. That would also be for the jury under--
Henry J. Tashman: Well, certainly we don't lose on infringement because in this particular case infringement--
Ruth Bader Ginsburg: --Yes, but I mean as a question of whether you would be entitled to a jury trial if there is a fact to be tried.
Henry J. Tashman: --I know--
Ruth Bader Ginsburg: If Tull is all you have, then if there is a fact to be tried, the only thing you would get from a judge is the amount of damages, not the willfulness determination, not the number of infringing acts, and not the basic infringement question. What more could you get from Tull except the very last piece of it?
Henry J. Tashman: --I would think that Tull would give us more than the last piece, and that would be any issues that relate solely to the question of liability, such as willfulness, would be the province of the court, and I think that's especially significant in this case. There is no requirement under the Copyright Act... and the petitioners make this argument and I think it's clearly incorrect, that there is no mandatory requirement for a finding of willfulness or a finding of innocence. The statute gives the court the absolute discretion to award damages between 500 dollars and 20,000 dollars without any finding whatsoever as to willfulness or innocence and in this case the court found that 20,000 dollars was the appropriate award, and that is an award which does not require any finding of willfulness or innocence. Only if the court wants to go above the 20,000 dollars is there a requirement that the court find willfulness.
Ruth Bader Ginsburg: But didn't the court find willfulness here as kind of a part of his explanation of why he picked 20 rather than 500 dollars?
Henry J. Tashman: Well, we certainly know that the court did find willfulness. As to why the court decided to award 20,000 dollars, which would be the maximum amount without a finding of willfulness, we really don't know.
Antonin Scalia: You really want to slice this statute very, very fine, so that not only does the amount of damages somehow get lopped off from the rest of it, but even within the damage provision, up to 20,000 dollars can be decided by the judge alone and when you get above that, if there's willfulness, it... the jury has to be called in. How does that work? What... I mean, how does the judge know there's no willfulness, so that he should only give up to 20,000 dollars? I assume he has to send it to the jury first for the jury to find whether there's willfulness and, if the jury finds no, then he can do between 5 and 20, but that didn't happen here, did it?
Henry J. Tashman: Well, I think we could avoid that problem by... in a case where the plaintiff requests damages no greater than 20,000 dollars.
David H. Souter: Well, let me ask even... even in that case, I'm... I want to ask a question that goes to the point of whether Tull helps you even on damages alone. One reason Mr. Roberts suggested that Tull might not help you on that is that in Tull there was no... there was no 18th Century analogue and here he says there is and, going to that point, my question is this. Granted that in the early actions which were, I guess, brought in this country either for debt or in an action on the case for damages which were, as you point out, just mathematically calculated... you find the number of sheets, you multiply it times a penny or whatnot, and that's your verdict... nonetheless, despite the rather mechanistic way that damages would be calculated in those cases, is there authority that indicates that in those early cases the juries were returning verdicts simply of so many sheets plus infringement, as distinct from a verdict for money damages? In other words, were the juries coming back with general verdicts, or were they simply coming back with the basis for calculating a verdict which the judge then did? Do we know? In other words, I want to know what the 18th Century analogue is here in practice.
Henry J. Tashman: I... that's not a question that I have an answer to, although I would argue that, regardless of whether or not the juries specified an amount in the award or whether they just specified the number of copies in the possession of the defendant, that this statute and the colonial statute are entirely inadequate analogues to statutory damages, because the key and the essence of statutory damages is finding an alternate way to recompense the plaintiff outside of the standard rules of proof and outside of the standard measure of damages and outside of the standard rules of evidence. And what we have in the 18th Century are classic, rigid, legal causes of action either in debt, which is a sum certain, which is the antithesis of statutory damages--
David H. Souter: Or case, which is not.
Henry J. Tashman: --Or case, but again, while there's more flexibility in case, what we're talking about is actual damages. What we're talking... there's no question that case is the analogue of actual damages under 504(b) and there's no question that, under 504(b) for actual damages, there's a constitutional right to a jury trial.
David H. Souter: All right. Let's assume that. Let's assume that the analogue is not point for point. How do you answer this objection one of the questions that we have to ask, if we get to the point in the argument, is whether the jury... according the jury trial under the present circumstances is necessary to preserve the substance of whatever the 18th Century right was. If we start with the conclusion that the 18th Century juries were at least awarding something in the nature of actual damages, as distinct from statutory damages today, you nonetheless I think have to face this, that if, today, a plaintiff asks for actual damages, the plaintiff would, on the reasoning of the 18th Century analogue, get the jury trial right and the defendant would get the benefit of the jury trial right. Whereas if today's plaintiff says, I want to go for big money, I want to go for the kind of statutory damages which in this case could have resulted, I think... what was it, 44 million dollars, the upper limit +/? a great deal of money, anyway, the jury right disappears and, given your answer to Justice Ginsburg, it disappears even on the question of liability. Don't you face the problem of how we preserve the substance of the 18th Century right if we accept your argument and, in particular, if we accept your answer to Justice Ginsburg?
Henry J. Tashman: No, I don't think so. I don't think the substance of the 18th Century right goes to the amount or the size of the award.
David H. Souter: Well, let's assume that it at least goes to liability and the... on your answer to Justice Ginsburg, the right to a jury determination on liability is likewise gone if the election is made to accept the statutory damages.
Henry J. Tashman: And that is no different from the fact today, or during the 18th Century, that if a copyright holder brought an action for an injunction plus an equitable accounting, that all issues in that case, including the question of infringement, would be for the court. Now, the size and the impact--
David H. Souter: Well, they would be, but at least the accounting is... is at least for money that should not have been in the pocket in the first place. We're talking about a statutory damage remedy here with an outer limit in a willfulness case that exceeds anything that was known to 18th Century equity, I would suppose.
Henry J. Tashman: --Well, I'm not sure that's true if you factor in inflation, but regardless of that, if you're talking about an injunction to enjoin another copyrighted work... for example, today one motion picture believes another motion picture is infringing and if you want to talk about leverage, the leverage and the risk is not so much the damages as enjoining the infringing work, which may have cost hundreds of millions of dollars, before that work is distributed based upon copyright infringement. So it's quite possible that when you're dealing with injunctions the potential for injury to the defendant is just as great, if not greater, than when you're dealing with actual damages or statutory damages. Indeed, I think--
David H. Souter: Do we... is that the... I mean, I think that's a very good argument. It raises a question in my mind as to whether we should accept that analogy, because isn't the analogy that we look at in asking about the preservation of the substance of the jury trial right the analogy between the action at law then, or an action at law then and an action at law now? In other words, should I accept your analogy to what equity could do?
Henry J. Tashman: --Well, certainly equity did not do that in the 18th Century, but if there were statutory damages it would be an equitable... it would be an equitable... you would get them in equity, because they involve extraordinary discretion--
Ruth Bader Ginsburg: If you were doing what you just described today it would still be... if all you want is the injunction, no money relief at all, you want to stop the other picture from being shown, you don't have... the other side and you don't have a jury trial right if all you're seeking is an injunction.
Henry J. Tashman: --I think that's not subject to dispute and that could result in damages of hundreds of millions of dollars, injury of hundreds of millions of dollars--
Ruth Bader Ginsburg: But you wouldn't get the damages, because your claim would be precluded.
Henry J. Tashman: --No, when I say... I'm sorry, when I say damages, the consequence of an injunction, given those facts, would result in a huge amount of injury to the party being enjoined.
Stephen G. Breyer: There's a practical question related to this that I have that you may not have a judgment on, but as... in your experience, copyright holders who by and large are plaintiffs in these suits, if I compare them to other plaintiffs, say in tort suits, we don't... I haven't normally heard complaints from plaintiffs in tort suits about the jury. To the contrary. They feel that punitive damages, et cetera, normally... I'd say not everybody, but the jury's more than adequate, or adequate in awarding... taking care of the interests of the tort plaintiffs through punitive damages, et cetera. Why is it, in your experience, that in this case the copyright holders who tend to be plaintiffs in these cases fear... at least, I read that into what they're saying, that the jury won't be able properly to compensate them or to work with a statutory punitivetype situation?
Henry J. Tashman: Well, I know the amici have raised those issues and I can only speak to my experience in this case and in this case we do not believe that a jury would be incapable of awarding statutory damages. I suspect a jury would have awarded more statutory damages, because once they found willfulness, they would have felt compelled to go into the willfulness range, which is something the district court did not do. I can see... so we don't think that this gets into the third prong articulated in Ross, at least not given the facts here. I can see hypothetically two situations where it would. First, where statutory damages were elected after a jury came down with a verdict for actual damages and then you'd have to send back that jury and the jury, having deliberated and figured out that X dollars was the appropriate award of damages, kind of send them back and tell them, no, no, no, unring the bell, come up with another award, and I think that's conceptually a difficult thing to ask a jury to do, kind of to unring the bell, especially when you don't give them any guidelines to tell the jury... other than the possibility of willfulness or innocence, which is not a mandatory factor but a discretionary factor. So I would think under those facts it would be something that would be--
John Paul Stevens: Would you comment on Mr. Roberts' response to that, that the same problem applies when the judge tries the case?
Henry J. Tashman: --I'm sorry, can you repeat the question?
John Paul Stevens: The... Mr. Roberts suggested in response to this argument that you can unring the bell even if you don't have a jury. I mean, you can ask the judge to take a second look, too.
Henry J. Tashman: Well, the judge hasn't taken a first look, because the judge has not, while the case was going to the jury, spent days trying to figure out the appropriate amount of actual damages and lost profits, so the judge is really coming to that issue completely afresh, while the jury is already committed to this concept that X dollars were lost profits and X dollars were actual damages.
John Paul Stevens: You're saying that if the judge has already determined actual damages it would be too late to unring the bell.
Henry J. Tashman: Well, the judge doesn't determine actual damages.
David H. Souter: Oh, but if there's no jury trial at all, if there's no jury right at all, he's going to.
Henry J. Tashman: Well, if there's no jury right, then the judge won't determine actual damages because the only question is statutory damages, so in that case--
Ruth Bader Ginsburg: No, I thought-- --No-- --Justice Stevens--
Henry J. Tashman: --I'm sorry.
Ruth Bader Ginsburg: --was asking the question, suppose neither side wants the jury, you have a judge trial, plaintiff gets an amount calculated by the judge--
Henry J. Tashman: Ah.
Ruth Bader Ginsburg: --and says, judge, I don't like that calculation. Do it under statutory damages.
Henry J. Tashman: Thank you. Is that your hypothetical?
Speaker: Yes.
Henry J. Tashman: Thank you for the clarification. I would think it would be difficult for a judge, but I think a judge would be in a better position to go back and to recalculate or rethink than a jury would be, although--
Anthony M. Kennedy: Although I suppose a judge could protect himself and say, if you're going to submit the matter to me, are you asking for actual damages or statutory damages and you can say we... make a prayer in the alternative.
Henry J. Tashman: --Correct.
Anthony M. Kennedy: I suppose a judge could protect himself by demanding to know from the client in advance what he wants.
Henry J. Tashman: I think that's quite true.
Antonin Scalia: Can you require the determination to be made in advance like that?
Henry J. Tashman: No.
Antonin Scalia: I thought it... so the answer's no.
Henry J. Tashman: No.
John Paul Stevens: Would you... I had the same problem Justice Breyer asked you about. I understand you just represent one client in this case and the irony of it is, maybe... you may be better off if you lose, because a jury may come in with a bigger award.
Henry J. Tashman: Well, I hope you wouldn't rule based upon that.
John Paul Stevens: Well, I certainly won't. [Laughter] I certainly won't, but it's ironic... or the other way around. They... there may be a crossverdict.
Henry J. Tashman: I think my client would not feel better off if he lost.
John Paul Stevens: If they have to try the case over. No, I understand that. But it is puzzling to me as to why, because of the position filed by the amici, why this class of plaintiffs is afraid of... seems to disapprove of juries whereas the plaintiff generally would seem to prefer juries. Is there anything about copyright law that suggests why that should develop?
Henry J. Tashman: Well, I think we're dealing with intangible rights. We're dealing with rights that are inherently difficult to value. We're dealing with rights which are not consumed. We're dealing with cases where you have large companies suing local establishments, where--
John Paul Stevens: Not much human interest in it at all, is there? [Laughter]
Henry J. Tashman: --Where it's... you know, it's very difficult to try to figure out how a huge music company has been injured by Joe's Bar and Grill performing.
William H. Rehnquist: Thank you, Mr. Tashman.
Henry J. Tashman: Thank you very much.
William H. Rehnquist: Mr. Roberts, you have 4 minutes remaining.
John G. Roberts, Jr.: Thank you, Mr. Chief Justice. Justice Souter, the answer to your question is juries at common law returned general verdicts for an amount. They didn't say 50 sheets, go do the math. The citations are collected at page 43 of our brief.
William H. Rehnquist: They returned general verdicts where there was a statutory specified amount for each sheet?
John G. Roberts, Jr.: Sure. Now, it's a calculation, but they did the calculation.
William H. Rehnquist: But I mean, it wasn't a great mystery what the calculation ought to be.
John G. Roberts, Jr.: No. No, at least not under those where the amount was fixed. It was under the statutes in New Hampshire and Massachusetts and Rhode Island. Justice Kennedy, a better citation than the one I gave you is on page 35 of our brief, the Colburn case, saying the court in equity doesn't award anything beyond the accounting, so damages beyond restitution would not be allowed. It's important to recognize that the willfulness determination here was critical to the judgment. The district court noted the range for willful infringements before imposing his award. Columbia argued that the court should award a higher award. They said, just 40,000 per infringement and that's less than half the amount you can award, what they said and, of course, the court of appeals in upholding the amount emphasized that the infringements were willful and the 20,000 figure was well within the statutory range. Now, to focus for a moment on the third point in Tull, the damages question. If this is a legal action, issues of infringement, number of works, willfulness have to be tried to the jury and Tull is the only impediment to the conclusion that damages also are for the jury. Tull proceeds along the assumption that, although the Framers were willing to take up arms over the issue of whether a judge or a jury decides liability, they didn't care one way or another whether the judge or the jury said 200 dollars or 100,000 dollars. The proposition simply makes no sense. The amount of--
Stephen G. Breyer: So we'd have to overrule Tull, in your view.
John G. Roberts, Jr.: --No. I think Tull can be confined to the civil penalty context in which it arose and the particular history in which it arose. In other words, the historical fact about civil penalties as opposed to damages. But we know that damages were set by the jury when they were not fixed, regardless of the case with respect to civil penalties. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Roberts. The case is submitted.