Piracy Statutory Damages “Should Approximate the Actual Damages Suffered”

As highlighted in this site’s Pay Per View piracy prosecution archives, A typical fact pattern plays out as follows

  • A bar pirates the program
  • A private investigator gets wind and documents the piracy
  • Joe Hand Promotions (the commercial distributor for UFC and other PPV’s) sues and requests substantial damages
  • Joe Hand wins but is awarded a fraction of the damages they wished

Reasons for judgement were released recently by the US District Court, D. New Jersey, fitting this fact pattern.

In the recent case (Joe Hand Promotions, Inc v. Candelaria Assoc. LLC) the Defendant bar displayed a boxing PPV program without purchasing the commercial sub licencing rights from the Plaintiff.

The Plaintiff sued and obtained default judgement.  The cost of the program would have been $2,200 but the Plaintiff requested $5,000 in statutory damages.  The Court was quick to shoot this demand down noting “the award falling under the heading of statutory damages should approximate the actual damages suffered by the plaintiff, i.e., the unpaid sublicense fee for an establishment to show the Program.

The Court noted enhanced damages are the appropriate head for issues such as deterrence.  The Court, however, did not agree to the Plaintiff’s request of $20,000 and instead awarded $2,200 noting a lack of aggravating factors.  In reaching this assessment the Court provided the following reasons:

The plaintiff also seeks $20,000 in enhanced damages, arguing that this amount would achieve the goals of restitution and deterrence. However, the plaintiff does not argue that the defendants advertised their broadcast of the Program, charged a cover charge or charged a premium for food and drinks during the Program, or are repeat offenders of this type of unauthorized conduct. Furthermore, the plaintiff has not submitted a menu or a price list for the types of food and drinks that were served at the Restaurant, and the plaintiffs investigator rated the Restaurant as being merely fair, and thus the Court cannot determine whether the defendants reaped substantial profits from the unauthorized exhibition of the Program. The plaintiffs investigator additionally asserts that his head count revealed only thirty-seven patrons within the Restaurant.

Thus, the Court in its discretion will award enhanced damages of $2,200, which is equal to the cost of the sublicense fee, in order to provide for restitution and deterrence

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