Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, two further judgments were released recently reaching rather opposite results in assessing damages on fairly similar facts.
In the first case (Joe Hand Promotions , Inc v. Musser) the Defendant was found liable for showing UFC 172 in his commercial establishment without purchasing the commercial sub licence from the Plaintiff. Default judgement was awarded. The Court assessed statutory damages at the high end of the range and also awarded enhanced damages. In finding it was just to do so District Judge Sandra Beckwith reasoned as follows –
The Court finds that an award of the statutory maximum of $10,000 is appropriate in this case. The affidavit of Plaintiff’s investigator, Mark Caddo, states that he entered Charlene’s Lounge at 9:30 p.m. on April 26, 2014 (which was a Saturday night), and saw the Plaintiff’s program being played on four television screens behind the bar starting at 10 p.m. There was no cover charge, and the bar’s maximum occupancy was 250; Mr. Caddo counted between 10 and 18 patrons in the bar during the approximately 90 minutes that he remained at the bar. (Doc. 10-3) These facts do not suggest that the establishment reaped any significant profit from the illegal broadcast. But they do mesh with what Plaintiff describes as the “piracy model” of illegally broadcasting events such as Plaintiff’s UFC program. An award of a minimum amount of statutory damages would not address the necessity of deterring the conduct that is apparently quite common yet quite difficult for Plaintiff to detect and document.
Moreover, based on Plaintiff’s arguments and Mr. Caddo’s observation of a satellite dish on the roof of Charlene’s Lounge that evening, the Court agrees that the Defendant’s violation was willful within the meaning of the statute, as being done for the purpose of an indirect commercial advantage. Plaintiff cites cases defining “willful” conduct as conduct exhibiting a careless disregard for the governing statute and indifference towards the requirements of the law. See, e.g., TWA v. Thurston, 469 U.S. 111, 126-127 (1985). Whether or not Charlene’s Lounge actually reaped a commercial or economic advantage from the illegal broadcast is not controlling for purposes of determining willfulness; and it is difficult to imagine any other motive for such conduct. The Court finds that an award of $10,000 enhanced damages for the willful violation is appropriate based on the evidence and the arguments presented.
For all of these reasons, the Court orders that a default judgment be entered against Defendant Redeye Partners, LLC, individually and as the alter ego of Charlene’s Lounge, and in favor of Joe Hand Promotions, Inc., for statutory damages of $20,000 pursuant to 47 U.S.C. §§605(e)(3)(B)(iii) and (C)(I) and (ii), together with reasonable attorneys’ fees of $1,375.00 and costs of $400.00, for a total judgment of $21,775.00.
In the second case, (Joe Hand Promotions, Inc v. Hibbard) the Defendant was found liable for broadcasting UFC 167 in a commercial establishment without the appropriate licence. The facts were fairly similar to the above case but here the Court awarded minimal damages. In finding this was appropriate District Judge Meyerscough provided the following reasons:
In this case, Plaintiff submitted the Affidavit of its Investigator, who reported that she counted the number of patrons three separate times on the night the Program was broadcast. Aff. of Alexandria Gunn, Ex. B (d/e 18-2). The head counts were 20, 28, and 37. Id. Based on the capacity of the establishment, which was 70 people, Defendant would have paid $850 had he ordered the Program. See Id.; Rate Card, Ex. C (d/e 18-3).
Plaintiff asks the Court to award statutory damages not based on the number of patrons but on the amount Defendant would have paid if he had ordered the Program ($850) multiplied by four, for total statutory damages of $3,400. Mot. at ¶ 26; see also Rate Card, Ex. C (d/e 18-3).
After reviewing the affidavit and exhibits in this case, this Court concludes that an award based upon the amount Plaintiff would have charged Defendant for the Program ($850) is the sensible approach. Because the minimum amount of statutory damages the Court can award is $1,000, the Court awards $1,000 in statutory damages.
The Court then went on to reject the claim for enhanced damages providing the following reasons:
The Court, in its discretion, finds that enhanced damages are not warranted. Certainly, by failing to appear and file an answer, Defendant has admitted the allegations of the Complaint, which include the allegation that Defendant’s conduct was willful and for the purposes of direct or indirect commercial advantage or private financial gain. Compl. ¶¶ 17. However, the record before the Court does not establish that Defendant is a repeat offender, that Defendant charged a cover fee, or that Defendant advertised the event. Moreover, the size of the crowd was not large, and Defendant likely made little profit. Finally, the Court believes the statutory damages will be a sufficient deterrent