Reasons for judgement were recently published by the US District Court, S.D. Alabama, Southern Division, finding that there is ‘no right to indemnity’ when a Defendant is sued for alleged piracy of a pay per view broadcast.
In the recent case (Joe Hand Promotion, Inc. v. Cloud 9 Vapes LLC) the Defendant broadcast a UFC pay per view event in their commercial establishment. The Plaintiff claimed they did not have permission and sued for damages alleging Satellite/Cable piracy.
The Defendant argued they did nothing wrong noting they placed “the order through the commercial account cable box provided by Comcast, that Comcast had charged Cloud 9 and Harris for the event, and that Cloud 9 and Harris had paid Comcast for that event“. The Defendant brought Comcast into the lawsuit seeking indemnification for any damages they had to pay.
The Court dismissed the claim for indemnification noting a harsh reality that even if all the Defendant’s allegations are true no such legal remedy is available. In dismissing the indemnification claim District Judge William Steele provided the following reasons:
The fact pattern pleaded by Cloud 9 is neither exceptional nor particularly unusual. In case after case, a distributor of pay-per-view events has filed suit under §§ 553 and 605 against a bar or restaurant for exhibiting an event without permission, and the bar/restaurant has responded by bringing a third-party complaint against a cable provider, satellite provider, local promoter, or some other third party that the bar/restaurant says is actually responsible for any unwitting § 553 or § 605 violation by the bar/restaurant. And in case after case, federal district courts around the country have adopted the reasoning articulated by the Ninth Circuit in Doherty in determining that neither the statute nor the federal common law creates a right to indemnity or contribution in these circumstances, such that dismissal of the third-party complaint is appropriate under Rule 12(b)(6
For all of the foregoing reasons, the Court finds that the indemnity claim asserted by Cloud 9 and Harris against Comcast fails to state a claim upon which relief can be granted. Accordingly, Comcast’s Motion to Dismiss (doc. 28) is granted, and the Third-Party Complaint is dismissed without prejudice pursuant to Rule 12(b)(6), Fed.R.Civ.P. This action will proceed as between Joe Hand Promotions, Inc., on one side, and Cloud 9 and Harris, on the other, in accordance with the Amended Scheduling Order (doc. 33) entered by Magistrate Judge Bivins.