Cite as: 523 U. S. 340 (1998)
Scalia, J., concurring in judgment
In Tull, however, we were presented with no evidence that juries historically had determined the amount of civil penalties to be paid to the Government.9 Moreover, the awarding of civil penalties to the Government could be viewed as analogous to sentencing in a criminal proceeding. See 481 U. S., at 428 (Scalia, J., concurring in part and dissenting in part).10 Here, of course, there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. Tull is thus inapposite. As a result, if a party so demands, a jury must determine the actual amount of statutory damages under § 504(c) in order "to preserve 'the substance of the common-law right of trial by jury.' " Id., at 426.
* * *
For the foregoing reasons, we hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself. The judgment below is reversed, and we remand the case for proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in the judgment. It is often enough that we must hold an enactment of Congress to be unconstitutional. I see no reason to do so here—
9 It should be noted that Tull is at least in tension with Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492 (1829), in which the Court held in light of the Seventh Amendment that a jury must determine the amount of compensation for improvements to real estate, and with Dimick v. Schiedt, 293 U. S. 474 (1935), in which the Court held that the Seventh Amendment bars the use of additur.
10 As we have noted, even under the Statute of Anne and the Copyright Act of 1790, the amount awarded to the Government ("one Moiety") was determined by a jury.
355
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