Update May 19, 2016 – Circuit Judge Bobby Baldock upheld the $250 commercial piracy damage assessment over objections of the Plaintiff’s in reasons for judgement released this week.
Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, reasons for judgement were released this month by the United States District Court, D. New Mexico, assessing damages for the commercial piracy of UFC 158.
In the recent case (Joe Hand Promotions, Inc v. Sandbox) the Plaintiff had an investigator attend the Defendant’s establishment who displayed UFC 158 without paying commercial sub licencing fees to the Plaintiff. The following month the same investigator went to the same bar who were displaying a PPV boxing event without paying the commercial sub licencing fee to the Plaintiff.
The Plaintiff sued for piracy and sought damages of $60,000 for each infringement.
Magistrate Judge William Lynch rejected much of the claims noting the Plaintiff failed to establish willful piracy, failed to put in evidence that actual cost of ordering the PPV events (which apparently was $2,500- $4,000) and noted an absence of aggravating behavior such as advertising the event or levying a cover charge.
In assessing damages at a total of $250 for each event Judge Lynch noted as follows:
As to actual or statutory damages, the Plaintiffs have totally failed to prove their damages. Plaintiffs have not been diligent in supplementing the record on this issue, despite multiple opportunities to do so. The only statement as to actual damages is counsel’s response that a license for an establishment with 250 seats would cost between $2,500 and $4,000. However, this statement is not evidence. The Complaints include no statement about damages. Therefore, I find that I am without sufficient information to make a determination as to actual damages.
This lack of information leaves me with no choice but to evaluate the appropriateness of statutory damages under the circumstances. Initially, I note that a total of approximately 150 people attended the establishment on the nights in question, that the defendants did not charge a cover or advertise the fights, and that the Plaintiffs failed to supplement the record with any information about damages. Given the small number of patrons at the establishment, the lack of evidence concerning whether the patrons attended for the purpose of viewing the fight, and the lack of information on other damages, I find that the minimum statutory award of $250 per violation is appropriate. Accordingly, I recommend that the Court award statutory damages of $250 to each Plaintiff, to be assessed jointly against all remaining defendants in each case.
While it is in the Court’s discretion to award costs and fees to a prevailing aggrieved party, I find that it would be unjust, under the circumstances, to award each Plaintiff their full request of $1,512.50 in costs and fees. I recommend that the Court award each Plaintiff costs in the amount of $500, and a modified order of attorneys’ fees of $250 in each case.