$10,000 In Damages Ordered for Commercial Piracy of Cotto v. Alvarez

Adding to this site’s archived case summaries of combat sports piracy judgements, reasons were released last week by the US District Court, D. New Jersey, ordering $10,000 in damages to be paid for the commercial piracy of Cotto v. Alvarez.

In the recent case (Joe Hand Promotions, Inc. v. Singleton) the Defendant displayed the Pay Per View boxing card in a Bar without paying the commercial sub licencing fees.  The cost would have been $2,200.  The Plaintiff sued and obtained default judgement with damages being assessed at $10,000 plus attorney fees.  In finding this assessment reasonable District Judge John Michael Vazquez provided the following reasons:

Plaintiff states its actual damages are $2,200, the amount of the licensing fee that Defendant should have paid. Pl. Aff. at ¶ 8. Plaintiff, however, has elected to recover under 47 U.S.C. § 605. Plaintiff asks for $5,000 under § 605(e)(3)(C)(i)(II). The Court finds this request reasonable because it is less than the statutory maximum and because and Defendant clearly harmed Plaintiff by unlawfully realizing financial gain from the Program to which Plaintiff owned the rights.

Plaintiff also asks for $10,000 under § 605(e)(3)(C)(ii). Plaintiff is entitled to damages under this section in addition to those awarded above because the Court finds that the violation was willful. The Court finds that Defendant’s violation was willful for several reasons. First, signals do not spontaneously descramble. Time Warner Cable of N Y. C. v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999). Intentional actions are required to intercept a closed-circuit broadcast. Joe Hand Promotions, Inc. v. Cat’s Bar, Inc. et al., 2009 U.S. Dist. LEXIS 20961 (C.D.Ill. Mar. 16, 2009). Second, Defendant specifically advertised the illegal broadcast. In addition, Defendant acted for commercial gain and also increased the Establishment’s food and beverage prices during the Program. Therefore, the court has the discretion to award Plaintiff up to $100,000 under this section because the violation was done willfully and for commercial gain. Plaintiff only requests $10,000. Plaintiff invested a large sum of money into obtaining the rights to the Program, and the Court agrees deterrence is a relevant factor. The Court, however, will decrease to award to $5,000 because a damages award should be enough to deter future violations without putting a defendant out of business. See Garden City Boxing Club, Inc. v. Polanco, 2007 WL 305458, at *5 (S.D.N.Y. Feb. 7, 2006). Accordingly, under sections 605(e)(3)(C)(i)(II) and 605(e)(3)(C)(ii), the Court awards Plaintiff a total of $10,000.

Plaintiff also requests $3,388.50 in fees and costs. Plaintiff’s attorney puts forth a detailed log supporting this request. Attorney Affidavit in Support of Damages, Costs, and Attorneys’ Fees, D.E. 9-2, hereinafter “Atty. Aff.”, at ¶¶ 8-9. The log contains a list of reasonable tasks and differentiates between work done by partners, associates, and paralegals. Using the lodestar approach, Plaintiff requests fees of $350 per hour for 0.40 partner hours, $250 per hour for 5.50 associate hours, and $95 for 11.30 paralegal hours, for a total of $2,588.50. Ex. A to Atty. Aff. With the addition of the filing fee and service of process fee, Plaintiff is entitled to $3,388.50 in fees and costs. Accordingly, Plaintiff is entitled to $13,388.50 in total, consisting of $10,000 in statutory damages and $3,388.50 in attorneys’ fees and costs.

This award is consistent with previous awards under similar circumstances. For example, the Second Circuit upheld an award for plaintiff of $5,000 under § 605 and an additional $5,000 for willfulness. Garden City Boxing Club, Inc. v. Polanco,2007 WL 1098112 (2d Cir. 2007). In that case, the defendant intercepted the same type of program, the actual damages suffered by the plaintiff were nearly identical to the present case, and the defendant was a small business. Therefore, the award of $13,388.50 in the present case is justified because it is unlikely that

Defendant obtained a significant sum of profits due to the Establishment’s small size, and this award is sufficient to deter future violations without putting Defendant out of business.

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