Lawyer Fee Recovery A One Way Street In UFC Piracy Prosecutions

When Zuffa or their commercial distributor (Joe Hand Promotions) sue for piracy of UFC Pay Per View products in the US they usually rely on cable and satellite signal theft legislation.  These laws often allow them to recover, in addition to damages, their legal fees from the opposing parties.  When their lawsuits fall short, however, defendants don’t enjoy equal privileges in recovering lawyer fees as demonstrated in reasons released earlier this month.

In the recent case (Joe Hand Promotions, Inc v. Soto) the Defendants were sued for alleged piracy of UFC 128.  The lawsuit was dismissed when Joe Hand failed to comply with the Court’s scheduling order.  The Defendant spent over $9,000 in attorney fees in successfully defending the lawsuit.  They asked the Court to award these but District Judge Winmill dismissed the request finding the attorney fee remedy is a one way street typically only available to the Plaintiff’s.  In finding that the remedy was not available to Defendants absent evidence the Plaintiff acted “in bad faith, vexatiously, wantonly, or for oppressive reasons” the Court provided the following reasons:

Under both 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii), awards of attorney fees are limited to “an aggrieved party who prevails.” Other districts have determined that a defendant is not an “aggrieved party” within the meaning of the statutes and that nothing within the Cable Act statutes authorizes an award of attorney fees to a prevailing defendant. VJC Productions., Inc. v. Kydes, 903 F. Supp. 42, 43 (S.D. Ga. 1995); Kingvision Pay-Per-View, Ltd. v. Manente, 1:05CV00280 OWW SMS, 2006 WL 120141 (E.D. Cal. Jan. 12, 2006); Joe Hand Promotions, Inc. v. Nekos, 96-CV-706 (FJS), 1998 WL 238619 (N.D.N.Y. May 5, 1998). As reasoned by the court inVJC Productions:

Having authored a “two-way street” fee-shifting statute in the past, 42 U.S.C. § 1988, Congress certainly knew how to enact the same component in 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii). “Where Congress knows how to say something but chooses not to, its silence is controlling.” In re Haas, 48 F.3d 1153, 1156 (11th Cir.1995). By limiting these Cable Communications Policy Act fee-shifting statutes to an “aggrieved” party, rather than a mere “prevailing” party (under which a defendant may recover fees under 42 U.S.C. § 1988), Congress signaled its intention not to authorize fee awards for defendants in Cable Act cases.

903 F. Supp. at 43-44. The Court agrees with the reasoning in VJC Productions and, likewise, holds that 47 U.S.C. § 553(c)(2)(C) and § 605(E)(3)(B)(iii) do not authorize an award of attorney fees to a prevailing defendant.

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