$4,750 in Damages Awarded Following UFC 173 Piracy

Posted: December 7, 2015 in Uncategorized
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Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, reasons for judgement were released recently by the US District Court, ED California, rejecting a claim for $110,000 in damages but instead awarding $4,750 in total damages.

In the recent case (Joe Hand Promotions Inc. v. Dhillon) the Defendant operated a commercial establishment and displayed UFC 173 without paying the $750 commercial sub-licencing fee to the Plaintiff.

The Plaintiff sued for damages and obtained default judgement.  The Plaintiff sought $110,000 in damages but the Court rejected this demand as disproportionate to the harm done.  In awarding $4,750 in total damages Magistrate Judge Kendall Newman reasoned as follows –

In this case, plaintiff’s investigator, who was present in McHenry’s Bar for approximately 22 minutes, noticed about 7 people in the establishment who were eating or drinking (one table of patrons eating and four persons at the bar). The investigator noted that McHenry’s Bar had three 32-inch televisions, two of which displayed plaintiff’s Program. He also reported that there was no cover charge for entry on the night in question. (See ECF No. 8-3.) Furthermore, there is no evidence before the court that defendants promoted the fight’s airing at McHenry’s Bar, or that a special premium on food and drink was charged on the night of the fight. Indeed, with so few patrons in the establishment, it is highly unlikely that McHenry’s Bar was doing any greater level of business on the night Plaintiff’s Program was shown than at any other time.

In light of this record, which lacks evidence of defendants reaping any significant profit from their piracy of Plaintiff’s Program, the court awards plaintiff $1,000.00 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II). However, because plaintiff has alleged that defendants acted willfully and for purposes of direct/indirect commercial advantage or private financial gain (Compl. ¶ 20), and because it is extremely unlikely that defendants innocently or inadvertently intercepted plaintiff’s Program, the court also finds that plaintiff is entitled to $3,000.00 in enhanced statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii). To be sure, as plaintiff contends, defendants and other commercial establishments would be encouraged to violate the law if they knew that the full extent of their liability would not exceed what they would have to pay for a license on the open market. However, when added to the cost of a license fee for plaintiff’s Program, which the court awards pursuant to plaintiff’s conversion claim below, these statutory damages should serve as sufficient deterrence to defendants and similarly-situated commercial establishments, while at the same time remaining proportionate to the circumstances of the case. See J & J Sports Productions, Inc. v. Jurado, 2011 WL 6153605, at *4 (E.D. Cal. Dec. 12, 2011) (collecting awards in similar cases)…

Plaintiff claims $1,250.00 in conversion damages, because that is purportedly the amount that defendants would have been required to pay plaintiff to lawfully air plaintiff’s Program. The affidavit of plaintiff’s president, Joe Hand, Jr., indicates that the commercial sublicense fee to air plaintiff’s Program is based on the capacity of the establishment. (ECF No. 9 at 3, ¶ 8, Ex. 2.) The problem is that plaintiff has provided no evidence of the actual capacity of McHenry’s Bar. Plaintiff’s investigator noted the presence of 7 people at the time he visited McHenry’s Bar, but failed to indicate the establishment’s overall capacity. (See ECF No. 8-3.) As such, the court has no basis to award the requested $1,250.00. Instead, the court awards conversion damages of $750.00, which are based on the commercial sublicense fee that would have been charged if McHenry’s Bar had a capacity of 0-50 people. (ECF No. 9, Ex. 2.)

 

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