Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, ED California, assessing damages for the commercial piracy of UFC 173.
In the recent case (Joe Hand Promotions, Inc v. Ahmadi) the Defendant displayed UFC 173 in a commercial establishment without paying the commercial sub licencing fees. The Plaintiff sued and obtained default judgement. The Plaintiff sought maximum statutory damages of $110,000 but the Court rejected this request and instead awarded damages totaling $6,000 Magistrate Judge Deborah Barnes provided the following reasons:
Under the Federal Communications Act, a plaintiff may elect to seek either actual or statutory damages…. The statute provides for statutory damages for each violation of not less than $1,000 and not more than $10,000, as the court considers just… Plaintiff seeks the maximum award of $10,000. The statute also authorizes enhanced damages of not more than $100,000 if the court finds the violation was “committed willfully and for purpose of direct or indirect commercial advantage or private financial gain.” ….. “[T]he mere assertion that Defendant acted willfully is insufficient to justify enhanced damages.” Kingvision Pay-Per-View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1198 (N.D. Cal. 2000).
Here, plaintiff seeks $100,000 in enhanced statutory damages. Plaintiff argues that the requested amount is justified primarily because of the need to deter broadcast piracy in light of the harm done to plaintiff’s business as a result of such activities. In determining whether enhanced statutory damages are appropriate, courts usually consider “repeated violations over an extended period of time; substantial unlawful monetary gains; significant actual damages to plaintiff; defendant’s advertising for the intended broadcast of the event; defendant’s charging a cover charge or charging premiums for food and drinks.” Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F.Supp.2d 1179, 1185 (D. Colo. 2008) (quotation omitted).
Plaintiff has submitted an affidavit from its investigator stating that during the airing of the program at defendant’s establishment the investigator observed a maximum of 26 patrons inside the establishment and that there was no cover charge to enter the establishment. (ECF No. 14-3 at 2.) Plaintiff has come forward with no evidence of any promotion by defendant that the fight would be shown at the establishment, that a special premium on food or drink was being charged at the establishment on the night of the program, or that the establishment was doing any greater level of business on the night the program was shown than at any other time. As acknowledged by plaintiff, there are “no egregious circumstanced noted” in this action. (Pl.’s MDJ (ECF No. 14-1) at 11.) Moreover, plaintiff has presented no evidence to the court suggesting that the defendant is a repeat broadcast piracy offender.
In light of this record, the undersigned finds plaintiff’s argument in support of enhanced statutory damages to be unpersuasive and not supported by the weight of authority in this area. Accordingly, the undersigned will recommend that judgment be entered against the defaulted defendant, and that plaintiff be awarded $6,000 in statutory damages, with no award for enhanced statutory damages, pursuant to 47 U.S.C. § 605(e)(3)(C)(i & ii). See J & J Sports Productions Inc. v. Ocampo, Case No. 1:16-cv-0559 LJO JLT, 2016 WL 6246490, at *6 (E.D. Cal. Oct. 26, 2016) (“Because there is insufficient evidence to demonstrate the piracy was done for purposes of commercial or private gain, enhanced damages are not recommended.”); J & J Sports Productions, Inc. v. Bolano, Case No. 5:14-cv-3939-BLF, 2015 WL 4512322, at *4 (N.D. Cal. July 24, 2015) (“In sum, it is Plaintiff’s burden to establish willfulness and Plaintiff has offered no evidence nor conducted any analysis of the specific facts in this case on this point sufficient to warrant an award of enhanced damages. As such, Plaintiff has failed to demonstrate entitlement to enhanced damages and the Court declines to award such damages here.”); J & J Sports Productions, Inc. v. Lorenzana, Case No. 13-cv-5554 BLF (JCS), 2014 WL 3044566, at *4 (N.D. Cal. May 13, 2014) (“There is also insufficient evidence that Defendant displayed the Program for a `commercial advantage’ or for `financial gain,’ which is required for an award of enhanced damages.”).