Reasons for judgement were released this week by the United States District Court, S.C. California, upholding a modest damage assessment in a case of piracy of a PPV product.
In this week’s case (Joe Hand Promotions v. Khan) the Defendant operated a commercial establishment and was sued for airing a PPV program without paying the commercial licencing fees. He was found liable and ordred to pay $750 in conversion damages and a further $1,000 in statutory damages under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II).
Displeased with this assessment the Plaintiff sought to alter the judgement. The motion was denied with the Court noting an absence of any aggravating factors justifying a departure from the assessment. In upholding the assessment the Court proved the following reasons:
Pending before the Court is Plaintiff Joe Hand Promotions, Inc.’s Motion to Alter Judgment. Plaintiff argues that the Court erred in awarding $1,750 in damages, comprised of $750.00 in conversion damages and the statutory minimum of $1,000 under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II). Plaintiff contends that enhanced statutory damages should have also been awarded.
The question of whether to award enhanced damages is within the court’s discretion. See Kingvision Pay Per View, LTD v. Ortega, 2002 WL 31855367, *2 (N.D.Cal. 2002) (reasoning that in evaluating whether to award enhanced damages, courts can consider factors such as repeated violations, the intent to profit and actual profit derived from the violations). Here, Plaintiff contends enhanced damages are warranted for two reasons.
First, Plaintiff relies on other cases that awarded enhanced damages. But those cases are factually distinguishable. In Kingvision v. Lake Alice Bar, 168 F.3d 347(9th Cir. 1999), the $80,400 award was based on the bar’s “repeated willful violations.” Id. at 350. Therefore, a higher damage award was warranted to deter defendant from future violations. In contrast, here Defendant was a first time offender, and there is no evidence suggesting a higher damage award is necessary to deter Defendant from committing future violations. Moreover, in Kingvision, the Ninth Circuit remanded the case “so that both sides [could] be heard on the appropriate amount of any reduction in the judgment.” Id. at 352. The remand suggests that the damage award was too high.
Plaintiff also cites J & J Sports Productions Inc. v. Olivares, 2011 WL 587466 (E.D.Cal. Feb 9, 2011), where more than 60 patrons were viewing the program. In contrast, Defendant’s establishment had far fewer patrons during the program. Additionally, because Defendant did not charge an entrance fee or advertise the program, there is no evidence suggesting that Defendant intended to profit and actually profited from the violation.
Next, Plaintiff argues that the award focused too heavily on specific deterrence at the expense of general deterrence. But as explained in the order, under the circumstances of this case, the Court is mindful that a larger award might put Defendant out of business. See Lake Alice Bar, 168 F.3d at 350 (reasoning that, “[d]epending on the circumstances, a low five figure judgment may be a stiff fine that deters, while a high five figure judgment puts a bar out of business”). Therefore, the Court finds that the damage award of $1,750 is reasonable.
For theses reasons, Plaintiff’s motion to alter judgment is DENIED