Reasons for judgement were released this week by the United States District Court, W.D Kentucky, Lousiville with critical remarks about repeated requests for “enormous damage” requests in prosecutions involving UFC pay per view piracy.
In the recent case (Joe Hand Promotions, Inc v. Hernandez) the Plaintiff sued the Defendant for displaying UFC 143 in a pub without paying the commercial sub licencing fees. Damages of $110,000 were sought but the court instead only awarded $1,000 in damages siting “weak” evidence.
The Plaintiff brought a motion to alter or amend the judgement arguing that such a low award would not properly deter others. In dismissing the motion and criticizing the Plaintiff for seeking maximum statutory damages Senior District Judge Charles Simpson III provided the following reasons:
Simply, Joe Hand argues that a $1,000 award with no enhancement fails to provide a sufficient deterrent effect to meet the policy considerations behind the statute. Joe Hand has made repeated requests for enormous damages against offenders in this district (in this case, $10,000 plus $100,000 enhanced damages sought in its original motion and urged by Joe Hand Jr. in his affidavit). The court recognizes that the statutes authorize sizeable damage awards in appropriate cases. However, there is a complete lack of information offered to the court concerning the entities which Joe Hand hopes to “deter” from future acts of piracy. Such motions recite select cases, many from other jurisdictions, including the case of Kingston Pay-Per-View, Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999) which, notably, states that “The range in the statutory award might allow for a sanction that deters but does not destroy.” The problem in this case is that the information brought before this court could not possibly justify such a large award. Here, Joe Hand indicated that the restaurant capacity was 120. However, the investigator performed a “head count” three times while on the premises on the night of the violation and noted the presence of 9 to no more than 14 patrons on each count. In the front of the store, he observed one 27″ television, with a satellite box connected to it, displaying the broadcast. Yet Joe Hand seeks a $110,000 award. Its motion to alter or amend does not seek a specific amount, but, citing Lake Alice Bar, suggests that a “low five figure judgment” would be appropriate. Joe Hand Jr., however, continues to demand in his affidavit lately submitted the maximum statutory damages and enhanced damages. DN 37-2, pp. 5, 7.
Generalities and selective cases which have not been shown to have any realistic relationship to the particular defendants against whom the legal attack has been mounted are unhelpful to the court in fashioning an appropriate award that “deters but does not destroy.” Id. The absence of an opponent swinging back against Joe Hand in the legal ring offers no justification for the imposition of an arbitrary and exorbitant damage award in the name of “deterrence.”
In truth, a number of the entities which have been brought before this court are out of business, Habana Blues Tapas Restaurant 2 LLC included, leaving Joe Hand to pursue, where it can, any remaining assets and/or the individual former owners to pay the damage award. In this case, individual liability has been imposed, and two of the Members are jointly and severally liable with Habana Blues for any damages. The defunct entity clearly will not be offending again. In most cases, Joe Hand stands unopposed on liability and damages. That is all the more reason for the court to carefully review the filings and ensure that justice is done in these cases.
Joe Hand’s argument is based wholly in generalities about the pervasive problem of commercial piracy. It urges that this court’s awards in this and prior cases are “too insignificant to address the pervasive problem of commercial piracy.” Not one case which has come before this judge involved advertising to promote a pirated broadcast, a cover charge, food sales in connection with a broadcast, or a significant number of patrons in a given venue — all indicia that the entity is “clearly profiting” from the unlicensed broadcast, as was found in Joe Hand Promotions, Inc. v. Young,No. 5:09CV-157-R. Joe Hand Jr. urges in his affidavit that such actions are often avoided as they tend to draw attention to the piracy. This may be true. However, an award of statutory damages addresses the employment of “signals which do not descramble spontaneously.” Enhancing damages for willfulness requires a showing that the pirate took action for commercial advantage or private financial gain. No facts or argument to this effect have been offered to support of a demand for enhanced damages in this case. Whatever the merit of the “deterrent effect” argument generally, this court is tasked with imposing an appropriate damage awardin the particular case before it. This court carefully reviewed the matter, reviewed other awards and the grounds therefore, and rendered an award that it found appropriate under the facts of the case. Upon reconsideration, the court again concludes that an award of $1,000 is sufficient under the circumstances of this case. The motion to alter or amend the judgment will therefore be denied.
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