In what is one of the higher judgements you will see for the commercial piracy of a sports Pay Per View program, reasons for judgement were recently published assessing damages of $60,000 for the piracy of Mayweather vs McGregor.
In the recent case (Joe Hand Promotions, Inc. v. Carter) the Defendant displayed the Mayweather vs. McGregor bout at a commercial establishment. They did not pay the commercial licencing fee to do so which would have been $30,000 for an establishment of their size. They further charged a cover for people to enter the establishment.
The Plaintiff sued and obtained default judgement. In finding that statutory damages of $10,000 and enhanced damages of $50,000 were warranted Magistrate Judge Michael E. Hegarty provided the following reasons:
Plaintiff submits evidence that the PWFFC had a capacity of 1,000 people on the evening of the boxing match. Aff. of Joe Hand ¶ 8, ECF No. 15-2; ECF No. 15-6, at 19 (Jeremy Carter’s Facebook post stating the PWFFC “can hold 1000”). Because Plaintiff charged $30.00 per person based on an establishment’s capacity, Defendants would have paid $30,000.00 for the broadcast rights. Aff. of Joe Hand ¶ 7. Accordingly, I recommend granting Plaintiff’s request for maximum statutory damages of $10,000.00.
I also find that Plaintiff’s request for $50,000.00 in enhanced damages is proper. Section 605(e)(3)(C)(ii) provides:
In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a) of this section.
First, Plaintiff demonstrates that Defendants willfully violated the statute. Although Plaintiff does not articulate the precise method Defendants took to intercept the event, Plaintiff produces a sworn affidavit contending that the programming “cannot be mistakenly, innocently, or accidentally intercepted.” Aff. of Joe Hand ¶ 9. The affidavit details various methods used to intercept Plaintiff’s programming, all of which require willful action. Id. I find this sufficient to demonstrate willfulness. See Gutierrez, 544 F. Supp. 2d at 1185 (finding willfulness based on evidence that to receive the programming, the defendants would have had to “use an unauthorized decoder, divert the satellite signal, or misrepresent the establishment as a residence”); see also Time Warner Cable of N.Y.C. v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999) (“Signals do not descramble spontaneously, nor do television sets connect themselves to cable distribution systems.”). Second, Plaintiff produces evidence that Defendants violated the statute for their own financial gain. Defendants charged an entry fee of $10.00 per person, and they heavily marketed the event. See ECF No. 15-6.
Regarding the proper amount of enhanced damages, they should be equal to that which is required to deter the offending conduct. Joe Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d 261, 290 (E.D. Pa. 2014) (“[T]he deterrence rationale is the central driver of enhanced damages.”). In calculating an appropriate number to ensure deterrence, courts 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; [and] defendant’s charging a cover charge or charging premiums for food and drinks.” Gutierrez, 544 F. Supp. 2d at 1185 (quoting Kingvision Pay-Per-View, Ltd. v. Recio, 2003 WL 21383826, at *5 (S.D.N.Y. June 11, 2003)).
I find reasonable Plaintiff’s request for $50,000.00 in enhanced damages. As a starting point, Defendants avoided paying Plaintiff $30,000.00. Aff. of Joe Hand ¶ 7, ECF No. 15-2. Thus, awarding enhanced damages in any amount less than $20,000.00 would encourage Defendants to avoid paying the required fee in the future. See Fallaci v. New Gazette Literary Corp., 568 F. Supp. 1172, 1174 (S.D.N.Y. 1983) (“A willful infringer, however, should be liable for a substantial amount over and above the market value of a legitimate license for otherwise infringers would be encouraged to willfully violate the law knowing the full extent of their liability would not exceed what they would have to pay for a license on the open market.”). Regarding the relevant factors, Defendants charged a $10.00 entry fee, received increased food and beverage sales, and heavily advertised the event. This likely allowed Defendants to realize significant profit, some of which they must pay to Plaintiff to deter future violations. Thus, I recommend finding that $50,000.00 is a reasonable and appropriate amount of enhanced damages. See J&J Sports Prods., Inc. v. Valdovines, No. 11-cv-02938-PAB-KMT, 2012 WL 3758841, at *3 (D. Colo. Aug. 28, 2012) (“[T]he Court finds that $50,000 is a reasonable amount of damages for a willful violation where 90 individuals paid a $10 cover charge to enter a facility with an occupancy of 608 people.”); Joe Hand Prods., Inc. v. Haddock, No. 1:09cv0290 LJO DLB, 2009 WL 2136117, at *2 (E.D. Cal. July 14, 2009) (recommending enhanced damages of $50,000.00).