Reasons for judgement were released this week by the US District Court, D. Arizona, ordering the owners of a commercial establishment to pay $9,000 for piracy of UFC 148.
In this week’s case (Joe Hand Promotions, Inc. v. Chileen) the Defendants displayed UFC 148 at their restaurant without paying the commercial sub licencing fee. The Plaintiff sought $39,000 in statutory damages. The Court granted summary judgement to the Plaintiff and awarded damages totaling $9,000. In arriving at this figure District Judge Paul Rosenblatt provided the following reasons:
The plaintiff’s investigator, Gary W. Turner, states the following facts in his affidavit that are relevant to the issue of § 605 damages: that he spent twenty-three minutes in the defendants’ establishment on the evening of July 7, 2012, that there were approximately forty-five people in the establishment, that the establishment had the capacity to hold between 350-400 people, that the only televisions were located in a separate bar area and there were three televisions in that area, one of which he estimated to have a 48″ screen and two smaller sets, that all of the televisions were showing the UFC 148 telecast, that there were approximately twenty people in the bar area, and that the establishment had a satellite dish on the roof. While the investigator says nothing about having to pay any cover charge or that the Program was advertised in any manner in the establishment, the defendants, through their failure to respond to the requests for admissions, have admitted that they had a cover charge and that they advertised the showing of the Program. The plaintiff has also submitted evidence that it would have cost the defendants $2,600 to purchase a license to legally show the Program.
As the plaintiff correctly states, the Court has considerable discretion in awarding § 605 damages. Based on the evidence presented, the Court concludes that statutory damages pursuant to § 605(e)(3)(C)(i)(II) in the amount of $4,000 is a just award.
The Court further concludes that the plaintiff is entitled to a discretionary award of enhanced damages because the evidence establishes that the defendants showed the Program for commercial advantage or for private financial gain. In light of the defendants’ deemed admissions, and in light of the supporting affidavit of Joe Hand, Jr., the plaintiff’s president, the Court accepts that the defendants must have taken specific wrongful actions in order to intercept the plaintiff’s encrypted program. The plaintiff has also presented other evidence of the defendants’ willfulness in that the establishment advertised the fight, required patrons to pay a cover charge, and had three televisions showing the Program. See Kingvision Pay-Per-View, Ltd. v. Guzman, 2008 WL 1924988, at *3 (D.Ariz. April 30, 2008) (“Courts use a variety of factors in determining whether a defendant’s conduct is subject to enhanced damages for willfulness under § 605, including prior infringements, substantial unlawful monetary gains, significant actual damages to the plaintiff, the defendant’s advertising of the broadcast, and the defendant’s charging a cover charge or premiums for food and drinks during the broadcast.”) In light of the evidence, the Court will award $5,000 in enhanced damages pursuant to § 605(e)(3)(C)(ii).
The plaintiff also requests in its complaint and in its summary judgment motion that it be awarded its reasonable attorney’s fees and relevant costs pursuant to § 605. The plaintiff is awarded its costs and fees because § 605(e)(3)(B)(iii) provides that the Court “shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails.” The plaintiff is directed to comply with LRCiv 54.1 and LRCiv 54.2 in applying for its costs and fees. Therefore,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 23) is granted pursuant to Fed.R.Civ.P. 56 to the extent that the plaintiff is awarded the sum of $9,000.00 from defendants Donna Jean Chilleen and Kid Chilleen Promotions, Inc. pursuant to 47 U.S.C. § 605. The Clerk of the Court shall enter judgment for the plaintiff accordingly.