358
Scalia, J., concurring in judgment
35 Stat. 1081. We have recognized that, although the prior statutory damages provisions
"were broadened [in 1909] so as to include other copyrights and the limitations were changed in amount, . . . the principle on which they proceeded—that of committing the amount of damages to be recovered to the court's discretion and sense of justice, subject to prescribed limitations—was retained. The new provision, like one of the old, says the damages shall be such 'as to the court shall appear to be just.' " L. A. Westermann Co. v. Dispatch Printing Co., 249 U. S. 100, 107 (1919).
If a right to jury trial was consistent with the meaning of the phrase "as to the court . . . shall appear to be just" in the 1856 statutory damages provision, I see no reason to insist that the phrase "as the court considers just" has a different meaning in that provision's latest reenactment. "[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard, supra, at 581.
I do not contend that reading "court" to include "jury" is necessarily the best interpretation of this statutory text. The Court is perhaps correct that the indications pointing to a change in meaning from the 1856 statute predominate. As I have written elsewhere, however:
"The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one—the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. 'Adopt the interpretation that avoids the constitutional doubt if that is the right one' produces precisely the same result as 'adopt the right interpretation.' Rather, the doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-
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