Amendment requires a jury trial is set forth in Tull v. United States, 481 U.S. 412, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1987). First, the court must look to the statute and to the legislative history to see if there is any legislative intent to grant a jury trial. Id. at 412 n.3. The statutory language and the legislative history of 47 U.S.C. § 605 do not indicate a particular right to jury trial, or a prohibition against a jury trial. The statute allows for injunctive relief, and states what "the court" should do, but the use of the word "court" is not necessarily controlling in a statute with regard to a right to jury trial. See, e.g., Storer Cable Comm. v. Joe's Place, 819 F. Supp. 593, 595 (W.D. Ky. 1993); see also Curtis v. Loether, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974). The legislative history is also somewhat sketchy; it discusses technological problems, or amend enforcement mechanisms without giving an indication of a particular legislative intent. See, e.g., H.R.100-998, 1988 U.S.C.C.A.N. 5577.
Since the statutory scheme is unavailing, the next approach to analysis of the question is to: 1) compare the statutory action to the actions brought in the courts of England in 1791; and 2) examine the remedy sought and to determine if it is legal or equitable in nature. See Tull, 481 U.S. at 417-18. The characterization of the relief sought is more important than finding a precisely analogous common law action. Id. at 421. The lawyers have not offered up any analogies, but the court finds persuasive the analogy of tortious interference with a property right. See General Instrument Corp. v. Nu-Tek Electronics, 1996 U.S. Dist. LEXIS 4946, Civ. A. No. 95-3854, 1996 WL 184794 (E.D. Pa. April 12, 1996).
As for the characterization of the relief sought, the Storer court found that the remedy under § 605 was more akin to restitution, and found that to be an equitable remedy. Storer, 819 F. Supp. at 597. This characterization has been disputed in this District with regard to another statute, 47 U.S.C. § 553, which punishes cable piracy and provides a similar scheme of remedies. See General Instrument, 1996 U.S. Dist. LEXIS 4946, 1996 WL 184794 at *3. The General Instruments court stated that the relief sought under § 553 was more aptly described as a means to punish willful violations of the statute, rather than a remedy that forced a defendant to produce any "unjust enrichment," and thus was not an equitable remedy. See id. The court finds the General Instruments characterization to be more persuasive.
Tull also directs this court toward characterizing the remedy sought by plaintiff as legal rather than equitable. Tull indicates that a civil penalty was a type of remedy that could only be enforced in the courts of law, and that an emphasis on retribution and deterrence in the legislative history would point toward a legal characterization of the remedy sought. See Tull, 481 U.S. at 423-25. However, the Tull court also found that the legislative history of the statute in question in the case (The Clean Water Act) indicated that the court was intended to assess civil penalties, so the final directive was that a jury should make a finding of liability, and then the a court should assess the penalties at issue. See id. at 425-26; but see Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 235-36 (3d Cir. 1997) (finding Tull inapposite to a punitive damages remedy in a bad faith action). Relatively recent legislative history amending 46 U.S.C. § 605 indicates an interest in deterrence and punishment of piracy of satellite cable programming but offers no guidance as to whether judge or jury should make a particular determination. See H.R. 100-887, 1988 U.S.C.C.A.N. 5577, 5642-43, 5657. This would apparently point toward a characterization of the remedies involved as legal, if the court is to use a Tull -style analysis.
Case law on this question is slight at best. The court does find some guidance available in cases involving copyright infringement in the Courts of Appeals, as that statute offers a plaintiff an election of actual or statutory damages for infringement. Perhaps not surprisingly, the Courts of Appeals diverge on this question, so the guidance available may be that the question is an open one. The Ninth Circuit looked to the language of the statute, which apparently pointed to judicial discretion in fixing damages, and to its characterization of the remedy of statutory damages as an equitable one, to find that there was no right to jury trial in a case involving a demand for statutory damages. See Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284, 293-94 (9th Cir. 1997). By contrast, the Eight Circuit found that a right to a jury trial does exist when statutory damages are requested in a copyright infringement suit, and the court focussed on the punitive purpose of statutory damages in such a suit in reaching its conclusion. See Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 642-43 (8th Cir. 1996). This question is currently before the Supreme Court. See Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284, 292-94 (9th Cir. 1997), cert. granted, 118 S. Ct. 30, 138 L. Ed. 2d 1059 (1997).
The court believed, and believes, that a jury trial on the issues presented was appropriate, given that what little legislative history exists indicates an intent to punish or deter various forms of piracy, and that determining statutory damages does not appear to be a task beyond the reach of the jury. See Cass, 88 F.3d at 643-44.
BY THE COURT:
MARVIN KATZ, J.
AND NOW, this 3rd day of March, 1998, upon consideration of plaintiff's Motion for Judgment as a Matter of Law, and the response thereto, it is hereby ORDERED that the said motion is DENIED.