Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, reasons for judgement were recently released by the US District Court, SD Georgia, Statesboro Division, awarding minimal statutory damages following the commercial piracy of UFC 161.
In the recent case (Joe Hand Promotions, Inc v. Flynt) the Defendant operated a bar and ordered UFC 161 at the request of a customer. The program was orderd from the Dish Network and the Defendant paid the residential fee of just over $50 for the program.
The Plaintiff sued and obtained default judgement noting that the Defendant needed to pay for the commercial exhibition rights whch would have been $1,200 for the program.
The Defendant sought maximum statutory damages of $110,000 but the Court rejected this heavy handed request noting ‘enhanced damages are not warranted’ on the facts of the case. In awarding damages of $1,200, the cost of the commercial sub-licence, District Judge J. Randal Hall provided the following reasons:
According to Joe Hand Jr., Plaintiff’s president, Plaintiff used a rate card to determine the licensing fee for the Program by reference to the licensed establishment’s maximum occupancy. (Doc. 9-2 Ex. 1). Additionally, Justin E. Jay, Plaintiff’s investigator, estimated that Chesterfield’s has a maximum capacity of 150 persons, which Defendant has not disputed. (Doc. 14, Ex. A). The rate card indicates that establishments with a maximum occupancy of 150 persons were charged $1,200 to show the Program. (Doc. 9-2, ¶ 8; Doc. 9-2, Ex. 1). The Court therefore awards $1,200 in statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II).
The evidence in the record also supports Defendant’s argument. In his affidavit, Defendant admitted that, at the request of “a couple of friends,” who were also customers on this occasion, he instructed his employee to order the Program from Dish Network and stated that he relied on Dish Network to provide him the correct price for the fight. (Doc. 12-1). In its reply brief, Plaintiff accepts that Defendant ordered the program via Dish Network and argues that Defendant’s conduct still constitutes a willful violation. (Doc. 14 at 4). In essence, Defendant has admitted that he called Dish Network and ordered and displayed the Program without Plaintiff’s authorization. Absent evidence of direct or indirect commercial advantage or private financial gain through advertisements, drink specials, cover charges, or similar conduct, the Court concludes that enhanced damages are not warranted.
Plaintiff’s own affidavits do not dislodge this conclusion. For instance, Plaintiff’s investigator’s affidavit acknowledges that Chesterfield’s did not require a cover charge. (Doc. 14-1, Ex. A). Plaintiff also submitted a Facebook post by Chesterfield’s. (Doc. 14-2, Ex. B). But the Facebook post does not indicate the date it was made or the particular U.F.C. fight being broadcast. And, although the Facebook post mentions drink specials, another post indicates the same specials were offered on the previous day when presumably no U.F.C. fight was broadcast. (Id.) The drink specials appear to be a regular happy-hour special and not a promotion tied to a U.F.C. program.
This case is therefore lacking the additional evidence necessary to award enhanced damages. See J & J Sports Prods., Inc. v. Bolano, No. 5:14-cv-03939-BLF, 2015 WL 4512322, at *4 (N.D. Cal. July 24, 2015); Joe Hand Promotions, Inc. v. Plummer, No. 3:14-cv-00001, 2014 WL 3749148, at *3 (N.D. Miss. July 29, 2014); Joe Hand Promotions, Inc. v. Becchetti, No. 12-cv-1242, 2013 WL 4520638, at *5 (M.D. Pa. Aug. 26, 2013). Absent that, the Court finds that Defendant’s conduct does not constitute a violation of 47 U.S.C. § 605(e)(3)(C)(i)(11). The Court therefore DENIES Plaintiff’s request for enhanced damages.
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