In my ongoing efforts to document caselaw addressing UFC Pay Per View piracy allegations, reasons for judgement were released this week by the United States District Court in San Diego dismissing such a claim against a Brazilian Jiu Jitsu gym.
In this week’s case (Joe Hand Promotions Inc. v. Cusi et al) the Plaintiff, Joe Hand Promotions, purchased and retained the exclusive commercial exhibition licensing rights to UFC 145. They “marketed the sub-licensing rights to its commercial customers, including casinos, racetracks, bars, restaurants, and nightclubs”. The Defendant, Stronghold Crossfit & Brazilian Jitsu, purchased UFC 145 and played it via internet at their facility. They did not pay for commercial exhibition licencing rights arguing “that the establishment functioned as a private residence at the time of the viewing.“
Despite this they were sued with allegations that they, as a commercial establishment, unlawfully intercepted and broadcast to its patrons satellite/cable programming. The Court dismissed the lawsuit finding there was no evidence that the internet broadcast used satellite or cable signals. In reaching this decision the Court provided the following reasons:
Defendants contend summary judgment is appropriate because Sections 605 and 553 do not apply to programs received and displayed over the internet. Defendants contend that they purchased the Event over the internet, so that their actions cannot be governed by statutes designed to combat interceptions of satellite or cable signals.
Plaintiff contends that the type of internet service determines whether liability exists under Sections 503 or 605. Plaintiff states, “[w]hat Defendants fail to address is how they accessed the internet . . . . The signal came from somewhere.” [Pl’s Opp. at 4.] To support this proposition, Plaintiff cites Zuffa, LLC v. Kamranian, 2013 WL 1196632 (D. N.D. March 25, 2013). There, a sports bar streamed an Ultimate Fighting Championship event via the internet without authorization. The defendant produced evidence demonstrating that it had cable internet. Accordingly, the Court dismissed the plaintiff’s Section 605 claim, as Section 605 only covered “radio” (i.e., satellite) signals.
Even assuming that Plaintiff is correct that the type of internet service determines whether liability exists under Sections 503 and 605, Plaintiff has failed to produce any evidence tending to demonstrate the type of internet used by Defendants. Moreover, as the discovery phase of the case is complete, Plaintiff cannot produce admissible evidence to support a necessary fact to support its claims under Sections 553 and 605. Fed. R. Civ. P. 56(c)(1)(B). Accordingly, the Court enters summary judgment in Defendants’ favor on Plaintiff’s federal statutory claims.
It is unfortunate that the Court did not have the opportunity to address the merits of the underlying dispute, that is, whether a BJJ gym that broadcasts a pay per view event without purchasing commercial licencing rights could be exposed to civil liability. The stark lesson remains, however, that UFC Pay Per View allegedly improperly broadcast at commercial establishments remain the target of aggressive civil litigation.