In the latest judicial damage assessment following UFC PPV piracy, reasons for judgement were released by the US District Court, SD Ohio Eastern Division, assessing damages of $3,750 following the commercial piracy of UFC 160.
In the recent case (Joe Hand Promotions , Inc. v. Buckman) the Defendants operated a sports bar which displayed UFC 160 without first purchasing s commercial sub-licence from the Plaintiff allowing them to do so. The Plaintiff sued seeking $75,000 in damages. Magistrate Judge Terence Kemp found that a more appropriate assessment was $1,250 (the cost of purchasing the sub licence) and then a tripling of this amount for deterrent purposes. The Court provided the following reasons:
According to Mr. Hand’s affidavit, based on the maximum capacity of 150 people, JHP would have charged defendants $1,250 for a license to broadcast the program. JHP has not provided any evidence of the cost of monitoring and investigating its broadcast rights specific to this case, although Mr. Hand does state generally in his affidavit that JHP retains auditors and law enforcement personnel at great expense. Given the state of the record, the Court can conclude only that JHP lost $1,250.00 as a result of defendants’ conduct. Consequently, the Court will recommend an award of statutory damages in that amount for defendants’ violation of § 605….
The Court finds the reasoning of Fazio persuasive and will recommend that it be applied here. As the court stated in that case,
… the deterrence of future violations is one of the objectives of the statute. Merely requiring defendants to pay the price they originally would have been charged to obtain legal authorization to display the Program does nothing to accomplish this objective of the statute. In other words “[t]here would be no incentive to cease the violation if the penalty were merely the amount that should have been paid.” Entertainmnet by J & J, Inc. v. Nina’s Restaurant and Catering, 2002 WL 1000286, at *3 (S.D.N.Y. May 9, 2002)
Plaintiff has not adduced sufficient evidence to support its request of enhanced statutory damages beyond this amount. While Plaintiff argues that Defendants’ violation of Section 605(a) was willful and for commercial or financial gain, the evidence provided by Plaintiff fails to support a conclusion that an award of this magnitude is justified in this case…. While plaintiff is entitled to some enhanced damages given the allegations in the Complaint and the low probability that a commercial establishment could intercept the Program merely by chance, see Al-Waha, 219 F.Supp.2d 769, Plaintiff has not presented any allegations or evidence showing that Defendants’ conduct was egregious enough to justify a more significant damages award, let alone an award of damages at or near the maximum allowed for a violation of Section 605.
Fazio, 2012 WL 1036134, at *3, *4. The above scenario describes the case here. Consequently, the Court concludes that an enhanced award of $2,500 would address the concerns raised by JHP while recognizing the limited evidence it provided as to defendants’ willful conduct.
Further, the Court finds the circumstances of this case easily distinguishable from those in RPM Management, 2011 WL 5389425, which resulted in another Judge from this Court awarding JHP $25,000 in damages based on the defendant’s alleged willful conduct. The defendants in that case were found to have committed multiple violations. No similar evidence has been presented in this case. Consequently, the Court will recommend a total damages award of $3,750, or three times the amount defendants would have paid for the right to broadcast the program.