Cite as: 523 U. S. 340 (1998)
Scalia, J., concurring in judgment
reference to "legal . . . relief" also strongly suggested a statutory right to jury trial. Id., at 583. The text of § 504(c) lacks such clear indications that "court" is being used in its broader sense. But their absence hardly demonstrates that the broader reading is not "fairly possible," e. g., Tull v. United States, 481 U. S. 412, 417, n. 3 (1987). The only significant evidence cited by the Court for that proposition is that the "Copyright Act use[s] the term 'court' in contexts generally thought to confer authority on a judge, rather than a jury," ante, at 346, but "does not use the term 'court' in the subsection addressing awards of actual damages and profits, see § 504(b), which generally are thought to constitute legal relief," ibid. That is a fair observation, but it is not, in my view, probative enough to compel an interpretation that is constitutionally doubtful.
That is at least so in light of contradictory evidence from the statutory history, which the Court chooses to ignore. Section 504(c) is the direct descendant of a remedy created for unauthorized performance of dramatic compositions in an 1856 copyright statute. That statute provided for damages "not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just," enforced through an "action on the case or other equivalent remedy." Act of Aug. 18, 1856, ch. 169, 11 Stat. 138, 139. Because actions on the case were historically tried at law, it seems clear that this original statute permitted juries to assess such damages. See Lorillard, supra, at 583. Although subsequent revisions omitted the reference to "action[s] on the case," they carried forward the language specifying damages "as to the court shall appear to be just." See Act of July 8, 1870, ch. 230, § 101, 16 Stat. 214; Act of Jan. 6, 1897, ch. 4, 29 Stat. 482. In 1909, Congress extended those provisions to permit all copyright owners to recover "in lieu of actual damages and profits such damages as to the court shall appear just . . . ." Act of Mar. 4, 1909, ch. 320, § 25(b),
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