$110,000 Claim Following UFC 165 Piracy Rejected; $3,250 in Damages Suggested

In the latest prosecution alleging UFC pay per view piracy, reasons for judgement were released recently by the US District Court, E.D. California, assessing damages at a fraction of what was claimed.

In the recent case (Joe Hand Promotions, Inc. v. Al-Arshad) the Defendant operated a commercial establishment and displayed UFC 165 on five television sets.  The Defendant did not pay the commercial sub licencing fee to do so which would have been at least $750.  There were between 25-35 patrons at the establishment during the program.

The Plaintiff sued and asked for maximum statutory damages of $110,000.  The Court largely rejected this claim as being disproportionate to the harm caused and recommenced total damages at $3,250.  In rejecting maximum damages District Judge McAuliffe reasoned as follows:

It is undisputed Defendant did not charge a cover for patrons to enter the Restaurant to watch the Program, nor did Defendant increase prices, or require food and drink purchases. There were also very few patrons in the bar and only five televisions broadcasting the Program. (See Andrews Decl, p. 2.) Plaintiff also presents no evidence Defendant is a repeat offender. Given these facts, the Court in its discretion finds the minimum statutory damage amount to be appropriate.

Accordingly, the Court RECOMMENDS that Plaintiff be awarded the minimum statutory damages allowed, $1,000…

Plaintiff also requests enhanced damages pursuant to Section 605(e)(3)(C)(ii). (Doc. 20-1 at 15-21.) This section authorizes the Court to award up to $100,000, in its discretion, upon finding that the violation “was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii)…

The Court does not find that an award of maximum damages under Section 605 is appropriate here. There is no evidence of significant “commercial advantage or private financial gain” in the instant case. Plaintiff has presented evidence that Defendant had five television sets in his commercial establishment that displayed the Program, and the affiant asserts that there were between 25-35 patrons present during its investigation. (See Andrews Decl., p. 2-3.) However, as already discussed, there is no evidence that Defendants assessed a cover charge, required a minimum purchase from patrons, or had a special premium on food and drinks on the night of the fight. See Kingvision Pay-PerView, Ltd. v. Backman, 102 F. Supp. 2d 1196, 1198 n.2 (N.D. Cal. 2000) (stating that “[a]n establishment that does not promote itself by advertising the Program, does not assess a cover charge, and does not charge a special premium for food and drinks hardly seems like the willful perpetrators envisioned by the statute’s framers.”). Plaintiff has also failed to present evidence that Defendant has violated Section 605 on prior occasions.

In light of the above mentioned facts, the Court does not agree that the maximum enhanced damages award is warranted. Although Plaintiff cites to several out-of-district cases to support its request for maximum enhanced damages possible (Doc. 20 at 15-21), Plaintiff has not cited any binding precedent or identified any specific circumstances that justify such a high award here. Accordingly, the Court concludes that an award of $1,500—twice the value of the commercial license to air the program—is more than adequate and just to compensate Plaintiff for lost profits and to deter Defendant’s future infringement…

Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s application for default judgment (Doc. 20) be GRANTED and judgment entered be entered in favor of Plaintiff and against Defendant in the amount of $3,250 in total damages.

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