J&J Sports Productions Inc v. Aguilar et al

Filing 26

ORDER granting 19 Plaintiff's Opening Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 2/1/13. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
J&J SPORTS PRODUCTION, INC.,
Plaintiff,
vs.
ROSA AGUILAR, individually and
d/b/a ROSITA’S BAR,
Defendant.

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Case Number CIV-12-467-C

MEMORANDUM OPINION AND ORDER
Plaintiff filed the present action alleging Defendant violated various federal statutes
related to video piracy. Specifically, Plaintiff alleges that on May 1, 2010, Defendant
broadcast a boxing match in Rosita’s Bar without proper authorization. Plaintiff asserts the
undisputed facts demonstrate that Defendant thereby violated 47 U.S.C. § 605 and 47 U.S.C.
§ 553. Defendant objects, arguing that while the program was broadcast in the bar, it was
not done so willingly and in any event any damages awarded should be significantly less that
those sought by Plaintiff.
Defendant has admitted that she broadcast the fight in the bar and that she did not
purchase a commercial license as required by Plaintiff. Defendant has also admitted that
Plaintiff had the exclusive licensing rights for the fight. Thus, it is undisputed that Defendant
has violated 47 U.S.C. §§ 553 and 605 et seq. by intercepting and exhibiting a program
licensed for distribution to Plaintiff without paying Plaintiff the required fees. While
Defendant argues that any violation was not willful, the statutes are strict liability statutes.

See Joe Hand Promotions, Inc. v. Kinder, No. 11-CV-450-GKF-PJC, 2012 WL 5494926, *34 (N.D. Okla. Nov. 13, 2012):
To establish liability under either § 553 or § 605, plaintiff must prove
that defendants unlawfully exhibited, published or divulged a privileged
communication and the signal transmitting that communication was delivered
to the intercepting party by way of a satellite or cable transmission. It is not
necessary for plaintiff to establish “willfulness” concerning the exhibition in
order to establish liability.
See also 47 U.S.C. § 605(e)(3)(C)(iii); 47 U.S.C. § 553(c)(3)(C); J & J Sports Prods., Inc.
v. Vega, No. CIV-10-635-M, 2011 WL 776172, *2 (W.D. Okla. March 1, 2011) (both § 553
and § 605 are strict liability statutes); J & J Sports Prods., Inc. v. Delgado, No. CIV.
2:10-2517 WBS, 2012 WL 371630 (E.D. Cal. Feb. 3, 2012) (same). Thus, the only issue left
for consideration is the amount of damages to be awarded to Plaintiff. The fees that Plaintiff
would have charged if Defendant had properly obtained the rights to the broadcast would be
approximately $4,200.00, and Plaintiff requests the Court to award an amount in excess of
that rate to serve as a deterrent to other establishments considering exhibiting pirated
programs.
Pursuant to 47 U.S.C. § 553, the Court may award either actual or statutory damages.
Here, Plaintiff requests the Court award statutory damages. Subparagraph (c)(3)(A)(ii),
provides that up to $10,000.00 in damages may be awarded. Further, if the Court finds the
broadcast was willful, § 553(c)(3)(B) authorizes an enhanced award up to an additional
$50,000.00. Plaintiff requests the Court award the maximum in statutory damages or
$60,000.00.

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After consideration of the facts and arguments set forth in the materials submitted by
the parties, the Court finds an award of damages in excess of the amount Defendant would
have paid had she properly purchased the rights to broadcast the program is necessary to
satisfy the intent of the above-noted statutes. As Plaintiff notes, to merely award damages
in the amount of the licensing fee would serve as an incentive for Defendant to continue to
violate the law in the future. An award in that manner would also not deter other parties from
violating the law. Accordingly, the Court finds Plaintiff shall recover $10,000.00 pursuant
to 47 U.S.C. § 553(c)(3)(A)(ii).
Turning to the issue of enhanced awards, the Court finds unpersuasive Defendant’s
argument that the violation was not willful. Defendant’s own admission establishes that she
knew the fight was available for purchase. Thus, Defendant was aware that some licensing
existed. That Defendant may have been unaware of the full extent of the licensing
requirements or the limitations does not excuse her actions. Further, the Court notes that this
is not Defendant’s first foray into the unauthorized interception of a boxing match. On July
16, 2010, the same Defendant was sued by Plaintiff, who alleged a similar violation. See J&J
Sports Prods., Inc. v. Aguilar, et al., CIV-10-756-C. Although that case was resolved by the
parties and dismissed, the fact that similar allegations were raised by Plaintiff establishes
Defendant’s awareness of the relevant statutes and her obligations to obtain a proper license.
Accordingly, the Court finds the interception and exhibition were willful and for commercial
purpose or private financial gain; therefore, the Court awards an additional $50,000.00 in
enhanced damages.
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For the reasons set forth herein, Plaintiff’s Opening Motion for Summary Judgment
(Dkt. No. 19) is GRANTED. Plaintiff shall recover $10,000.00 in statutory damages and
$50,000.00 in enhanced damages. A separate judgment will issue.
IT IS SO ORDERED this 1st day of February, 2013.

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