Adding to this site’s archived case summaries of combat sports piracy judgements, reasons were released last week by the US District Court, E.D. California, assessing damages for the commercial piracy of the Mayweather v. Pacquiao bout.
In the recent case (J & J Productions, Inc. v. Cervantes) the Defendant displayed the bout at a night club without purchasing the commercial sub licencing rights to do so. THe cost would have been $3,000.
The Plaintiff sued and obtained default judgement. The Plaintiff sought a total of $31,000 in damages but this request was largely rejected and damages were assessed at $8,000. In finding this assessment appropriate Magistrate Judge Jennifer Thurston provided the following reasons:
The Court may consider a number of factors in its determination of the amount of damages, including any promotional advertising by the defendant, the capacity of the establishment, the number of patrons present at the time of the broadcast, the imposition of a cover charge, the number and size of the televisions used for the broadcast, and whether a premium was charged on food or drink. J & J Sports Productions v. Sorondo, 2011 U.S. Dist. LEXIS 99951, at * 10-11 (E.D. Cal. Sept. 6, 2011) (citing Kingvision Pay-Per-View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1198 (N.D. Cal. 2000)).
Shannon Tulloss and Robert Sutton, Plaintiff’s investigators, did not indicate there were any advertisements for the Program at La Tormenta Night Club, and a cover charge was not required to enter. (See Doc. 53-3 at 2, 13) Mr. Sutton noted the venue had two screens, including a 19″ inch television and an “80′ + screen” upon which a projection was displayed. (Id. at 13) Mr. Tulloss, who was at the establishment between 8:16 and 10:07 p.m., indicated that he counted “29, 53, and 58″ [people]” at separate times during the broadcast. (Id. at 2, 4) Likewise, Mr. Sutton was present from 8:55 to 9:28 p.m., and counted “48, 47, and 48 [people]” at separate times during the broadcast. (Id. at 13) Both investigators gave the establishment a “poor” rating in quality. (Id. at 4, 13) Given these factors, the Court finds an award of $8,000— which is more than two times the cost of a proper sublicense —is appropriate.
The Eitel factors weigh in favor of granting default judgment, and the entry of default judgment is within the discretion of the Court. See Aldabe, 616 F.2d at 1092. However, the damages requested are disproportionate to Defendants’ actions. Importantly, when determining the amount of damages to be awarded for signal piracy, “the principle of proportionality governs.” Backman, 102 F.Supp.2d at 1198. Under this principle, “distributors should not be overcompensated and statutory awards should be proportional to the violation.” Id. As observed in Streshly, Defendant “may be the Blackbeard of pirates, but Plaintiff makes no attempt to portray [him] as such, and to the contrary, the act of piracy attributed to [Defendant] is as routine as they come . . .” Streshly, 655 F.Supp.2d at 1139.
Accordingly, the Court recommends the award of $8,000 for Defendant’s wrongful acts. This amount both compensates Plaintiff for the wrongful act and is a suitable deterrent against future acts of piracy.