Boxing Pay-Per-View Piracy Lawsuit Dismissed on Limitation Grounds

Reasons for judgement were recently published by the US District Court, W.D. Wisconsin, finding that a two year limitation applies for piracy lawsuits based on Communications Act of 1934, 47 U.S.C. § 605 and the Cable & Television Consumer Protection and Competition Act of 1992.

In the recent case (J & J Sports Productions Inc. v. Tina’s S and R Mirage Inc.) the Plaintiff sued the Defendants for allegedly displaying the Mayweather vs. Pacquiao Pay Per View program, which aired in May, 2015, without paying for the rights to do so.   The Defendants successfully brought a motion dismissing the lawsuits for being brought out of time.  The Court noted that since this Federal legislation does not have a limitation period courts are directed to borrow a limitation period from the forum state’s analogous state law.   The Court found that, in Wisconsin, a two year limitation period should be imposed for such lawsuits and accordingly dismissed the claim.

In applying a two year limitation period Magistrate Judge Stephen Crocker provided the following reasons:

In this case, the parties agree that the closest state-law analogue is Wis. Stat. § 943.47 (Theft of Satellite Cable Programming), which prohibits the unlawful interception of an encrypted satellite cable program.[1] However, because that statute does not specify a limitations period, courts must look to Wisconsin’s catch-all statute, Wis. Stat. § 893.93, regarding miscellaneous actions. The parties point to different sections of that statute for the limitations period in this case.

Defendants rely on the two-year limitations period for “[a]n action by a private party upon a statute penalty,” set forth in Wis. Stat. § 893.93(2)(a) (vers. eff. to Apr. 4, 2018). J & J Sports fails to address the applicability of subsection (2)(a) and instead relies exclusively on Jorgenson, in which Judge Griesbach applied the six-year statute of limitations period set forth in former Wis. Stat. § 893.93(1)(a) for an “action upon a liability created by statute.”[2] As defendants point out, however, the parties in Jorgenson did not discuss the two-year statute of limitations period regarding actions upon statutory penalties, so Judge Griesbach did not address it and instead used the six-year statute of limitations period applicable to statutes creating a liability. Jorgenson, 2012 WL 5985485, at *3 (reviewing parties’ proposals for analogous laws to apply).

Although the reasoning in Jorgenson is sound as far as it goes, I agree with defendants that the court in that case did not have the same arguments before it. Both the federal statutes and the Wisconsin statutes that address the unlawful interception and exhibition of satellite signals provide for criminal penalties. Therefore, the most closely analogous and most appropriate statute of limitations in this case is the two-year statute of limitations period applicable to penal statutes in § 893.93(2)(a). Because J & J Sport filed this case on March 30, 2018, more than two years after the alleged piracy occurred on May 2, 2015, its claims are barred by the applicable statute of limitations.

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