UFC Denied Summary Judgement in Commercial Piracy Case Shown on ESPN+

Adding to this site’s archives of combat sports piracy caselaw, reasons for judgment were recently published by the United States District Court, D. New Jersey, partly dismissing a UFC request for summary judgement in a commercial piracy case.

In the recent case (Zuffa, LLC v. Lavecchia) the Defendant displayed UFC 237 at a bar without purchasing the commercial sub licencing rights to do so. Instead the Defendant displayed the program via their personal ESPN+ subscription which they lawfully purchased (though separate from the licence needed to display the program in a commercial establishment)

The UFC sued for various grounds including alleged unauthorized publication or use of interstate or foreign communications by wire or radio.

The court questioned how this violation could have occured in the circumstances with the program not being intercepted but rather simply being displayed outside of the permitted use of their licence. In dismissing a request for summary judgement on this aspect of the UFC’s claim District Judge Susan Wigenton provided the following reasons:

Defendants admit that they did not purchase a commercial license for the Broadcast. (Br., Ex. D at 5.) However, Defendants assert that they “signed up for ESPN and ESPN+,” which provided them “access to [the Broadcast]” and allowed them to stream the fight “[o]nline through broadband internet.” (Id. at 4.) Defendants further aver that they “had no reason to believe” that they were required to reach out to Plaintiff to rent the Broadcast, as they “[were] sold the distribution through Disney and ESPN.” (Id. at 5.) Plaintiff did not file a reply…

Section 605 prohibits the unauthorized publication or use of interstate or foreign communications by wire or radio.” …Therefore, to prevail on a Section 605 claim, Plaintiff must demonstrate that: “the defendants (1) intercepted a broadcast” of airborne satellite transmissions; “(2) were not authorized to intercept the broadcast; and (3) showed the broadcast to others.” 

Here, Plaintiff has failed to clearly allege a statutorily sufficient manner of interception. Defendants have repeatedly averred in the record that they used an online ESPN+ subscription to stream the Broadcast, either through AT&T or Comcast internet services. …This would seem to negate an essential element of Plaintiff’s Section 605 claim. … Instead, the Motion repeatedly reiterates the ways that the Broadcast “could” have been intercepted and misleadingly cites Second Circuit precedent without citing the Third Circuit’s binding decision in TKR Cable Co.[3] (D.E. 24-8 (“McKnight Aff.”), ¶¶ 4-5; Br. at 9-10 (“[r]egardless of their method of interception, whether by streaming, cable, or satellite …”).) Additionally, Defendants assert that they were authorized to access their ESPN+ subscription, and Plaintiff has not provided terms of use dated in the appropriate year limiting Plaintiff’s subscription to residential access. (See D.E. 26 at 3, n.2.) Thus, it is not clear that “the evidence establishes the moving party’s entitlement to judgment as a matter of law,” Celotex Corp., 477 U.S. at 322-23, and summary judgment is inappropriate.


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