Cable TV Piracy public news alert – Be careful when purchasing a Pay per VBiew (PPV) boxing match. Make sure if your establishment is COMMERCIAL, that you obtain a COMMERCIAL license. If not, it is every easy to find yourself on the receiving end of dealing with a copyright bully.
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Introduction t0 Cable/Satellite Misappropriation Cases
I have been looking this issue over recently because I am starting to see what potentially appears to be a pattern (although it could be nothing more than a coincidence), and I am going to share some of my research and findings with you and let you make your own decisions. I have handled many of the TV signal piracy cases and while I am not making any specific allegations, or insinuations, I think this research needs to be looked at as well as the cases being filed across the Courts in the United States in very large numbers (along with Malibu Media and Strike 3 Holdings), G&G and J&J file a lot of lawsuits. The public needs to be aware of what's going on and to make sure to discuss with your cable TV provider (ex. Cox, Verizon, etc) to make sure if your COMMERCIAL business is buying the fight that you are ALLOWED TO SHOW THE FIGHT THEY ARE SELLING YOU. This will be the topic of another blog post – the potential third party liability in these cases.
How are these leads being generated? Which cases are followed up on versus which one are not? These are by and large the first cases that came up when I searched for “J&J Sports” on Westlaw. Looking back at my client list, it really dawned on me
Defendants own and/or operate a commercial establishment doing business as Vero's Mexican and Seafood. On Saturday, May 7, 2011, the evening that the program was displayed, plaintiff's investigator Francis Zellers observed the program exhibited at Vero's Mexican and Seafood. (Declaration of Affiant.) The program included the main event prizefight as well as fight commentary and under-card bouts. Plaintiff alleges four counts against defendants: (I) a violation of Title 47 U.S.C. § 605, which prohibits the unauthorized interception and publication or use of radio communications, including satellite broadcasts; (II) a violation of Title 47 U.S.C. § 553, which prohibits unauthorized interception of cable communications; (III) conversion; and (IV) a violation of California Business and Professions Code Section 17200, et seq. Plaintiff J & J Sports Productions, Inc., is a California company, which owned the exclusive nationwide television distribution rights to “Firepower”: Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program, telecasted nationwide on November 14, 2009. Defendants Victoria Estrella Concepcion and William Henry Concepcion are the owners and operators of Henry's commercial establishment in South San Francisco (Compl.¶ 7). They did not enter into a subleasing agreement with plaintiff in order to broadcast the program. The interstate transmission of the program was encrypted and was only made available to plaintiff's customers who had paid the licensing fees . The complaint alleges that on the date of the nationwide telecast of the program, defendants, with willful knowledge that the program was not to be intercepted by an unauthorized entity, intercepted and displayed the program at Henry's. J & J Sports Prods., Inc. v. Concepcion, No. C 10-05092 WHA, 2011 WL 2220101, at *1 (N.D. Cal. June 7, 2011).
Plaintiff J & J Sports Productions, Inc. (“J & J”) has filed suit against Defendant Roxanne Monique Mosley, individually and doing business as the Sweet Fingers a/k/a Sweetfingers Jamaican Restaurant. According to J & J, Ms. Mosley violated both federal and state law by intercepting and exhibiting a particular television program to which J & J was granted exclusive distribution rights. After Ms. Mosley failed to respond to the complaint in a timely fashion, his default was entered, see Docket No. 13 (Notice of Entry of Default), and J & J moved for a default judgment. The assigned judge referred J & J's motion for default judgment to the undersigned for a report and recommendation.
J & J Sports Prods., Inc. v. Mosley, No. C-10-5126 CW EMC, (N.D. Cal. Apr. 13, 2011), report and recommendation adopted, No. C 10-5126 CW,(N.D. Cal. May 25, 2011) Taken as true, J & J Sports‘ factual allegations support a conversion claim: (1) J & J Sports purchased licensing rights to the program at issue, (2) the defendants did not have the right to broadcast it, and (3) the defendants' establishment has a capacity of 60 people, so they would have been required to pay $2,200 for a subleasing agreement. Accordingly, J & J Sports is entitled to damages for conversion and is awarded $2,200 for this claim.
J & J Sports also seeks damages under Section 605, but damages are more appropriate under Section 553 in this case. Section 605 prohibits “radio” or satellite interception, while Section 553 prohibits cable interception. See 47 U.S.C. §§ 605, 553. It also provides for higher penalties than Section 553. J & J Sports does not provide any evidence that the defendants transmitted the program via satellite, and in fact, its investigator stated he did not see a satellite dish on the property. See Declaration of Affiant, Anthony Dazhan. Accordingly, the Court will apply Section 553. See J & J Sports Prod., Inc. v. Sergura,, at *4 (N.D. Cal. April 21, 2014) (applying Section 553, rather than Section 605, where the plaintiffs investigator did not state whether the broadcast was transmitted via satellite dish or cable box); J & J Sports Prod., Inc. v. Concepcion, (N.D. Cal. June 7, 2011). Under Section 553, a court may award up to $60,000 in statutory damages. 47 U.S.C. § 553(c)(3)(A)(ii) and (c)(3)(B). The Court finds that an award of $1,000 is sufficient to deter future violations by the defendants and to compensate the plaintiff. Although there were 20 patrons and two televisions showing the program, there was no cover charge and no evidence the restaurant charged a premium for food or drinks or advertised for the fight. Furthermore, there is no evidence the defendants are repeat offenders. The Court declines to award enhanced statutory damages. Accordingly, J & J Sports is awarded $3,200 in total damages. See J & J Sports Prods., Inc. v. Gonzalez, No. 14-CV-03932-VC, (N.D. Cal. Apr. 24, 2015).
J & J licenses the right to broadcast closed-circuit sports and entertainment programming in commercial establishments. Docket No. 17, Decl. of Joseph M. Gagliardi (“Gagliardi Decl.”). J & J then sub-licenses this right to the company's commercial customers, which consist of establishments such as casinos, racetracks, bars, restaurants, and nightclubs. Id. The program relevant to this case is the prizefight broadcasted on January 21, 2006 and marketed as “ ‘The Battle': Erik Morales v. Manny Pacquiao II, WBC International Super Featherweight Championship Fight Program.” (“The Battle”) Compl. J & J's president, Joseph M. Gagliardi, has observed an erosion in his company's sales, due in large part to signal piracy of broadcasts by unauthorized and unlicensed establishments. Gagliardi Decl. 8. Mr. Gagliardi believes that signal piracy has cost his company several million dollars in revenue. Id. Accordingly, J & J incurs a “considerable expense” to discover, identify, and prosecute signal pirates. Id. 6. B. Mr. Doan, Mr. Nguyen, and King Pizza. J & J filed its complaint against Mr. Doan and Mr. Nguyen on January 17, 2008. As alleged, Messrs. Doan and Nguyen are each “an owner, and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or individual with dominion, control, oversight and management of the commercial establishment doing business as King Pizza operating at 1632 Story Road, San Jose, California 95122.
J & J Sports Prods., Inc. v. Man Thi Doan, No. C-08-00324 RMW, (N.D. Cal. Nov. 13, 2008)
Plaintiff J & J Sports Productions, Inc. (“ J & J”) moves for entry of default judgment in the amount of $114,200.00 against D efendant Juan C. Lopez Banuelos, both individually and doing business as El Kora Restaurant. J & J seeks damages stemming from Mr. Banuelos's alleged violation of 47 U.S.C. § 605 and for conversion of J & J's property. Judge Phyllis Hamilton, the presiding judge in this action, referred J & J's motion to the undersigned for a report and recommendation. Having considered the moving papers, the undersigned RECOMMENDS that J & J's motion be granted in part for the reasons discussed below. STATEMENT. J & J Sports Productions, Inc. is a closed-circuit distributor of sports and entertainment programming. See Complaint, ECF No. 1, ¶¶ 19, 36 2. It purchased the right to distribute a boxing match, Manny Pacquiao v. Shane Mosley, WBO World Welterweight Championship Fight Program (the “Program”), including all undercard bouts and fight commentary, via closed circuit television. J & J Sports Prods., Inc. v. Banuelos, No. C 12-02244 PJH LB, 2013 (N.D. Cal. Mar. 7, 2013), report and recommendation adopted, No. C 12-2244 PJH, 2013 (N.D. Cal. Mar. 27, 2013). *1 Plaintiff, J & J Sports Productions, Inc. (“Plaintiff”) is an international distributor of sports and entertainment programming that purchased the proprietary rights to distribute a certain sporting event, “Manny Pacquiao v. Shane Mosley, WBO Welterweight Championship Fight Program” (the “Event”), which was telecast nationwide on May 7, 2011. In this action, Plaintiff alleges that Defendant Young Ng Nguyen, doing business as Mr. Krabs (hereinafter “Defendant”) illegally intercepted and broadcasted the Event in Defendant's place of business J & J Sports Prods., Inc. v. Young Ng Nguyen, No. 5:12-CV-02253 EJD, 2013 WL 3814670, at *1 (N.D. Cal. July 22, 2013)
Plaintiff J & J Sports Productions, Inc. (“J & J”) brought this civil action against Defendant Ulises Constantino Napuri, individually and doing business as Incas Grill, for violation of J & J's exclusive commercial distribution rights to a sporting event. Complaint, ECF No. Judge Armstrong, the presiding judge in this case, granted summary judgment in favor of J & J with respect to J & J's claims under the Federal Communications Act of 1934, as amended, 47 U.S.C. § 605 (“§ 605”), and the Cable & Television Consumer Protection and Competition Act of 1992, as amended, 47 U.S.C. § 553 (“§ 553”), and for conversion. J & J Sports Prods., Inc. v. Napuri, No. C 10-04171-SBA (LB), (N.D. Cal. Apr. 26, 2013), report and recommendation adopted in part, rejected in part, No. C 10-04171 SBA, (N.D. Cal. Aug. 15, 2013)
Reasonable attorney's fees are recoverable under both 47 U.S.C. § 605(e)(3)(b)(iii) and § 553(c)(2)(c). Section 605 applies to satellite transmissions and imposes a mandatory award of attorney's fees to the prevailing party. J & J Sports Productions, Inc. v. Magat, No. C 11–01149 WHA, (N.D.Cal. Oct. 12, 2011) (citing Kingvision Pay–Per–View Ltd. v. Lake Alice Bar, 168 F.3d 347, 349 n.1 (9th Cir.1999). Section 553, on the other hand, applies to cable transmissions and imposes only a discretionary award of attorney's fees. Id. (citing Lake Alice Bar, 168 F.3d at 349 n.1). Courts in this District have held that when a defendant defaults and the court is unable to determine the means by which defendant intercepted the program, the court should award damages pursuant to § 605 because it permits a higher maximum award and mandatory attorney's fees and costs. See G & G Closed Circuit Events, LLC v. Nguyen, No. C 11–06340 JW, (N.D.Cal. May 30, 2012); J & J Sports Productions Inc. v. Miranda, No. C 09–1037 SI, 2009 WL 3837273, at *2 (N.D.Cal. Nov. 16, 2009); Kingvision Pay–Per–View, Ltd. v. Chavez, No. C 00–2270 CRB, (N.D.Cal. Dec. 11, 2000). Regardless of the provision under which a plaintiff prevails or receives damages, however, a plaintiff's request for attorney's fees and costs must be reasonable. See 47 U.S.C. §§ 553(c)(2)(c), 605(e)(3)(b)(iii).
J & J Sports Prods., Inc. v. Napuri, No. C 10-04171-SBA (LB) (N.D. Cal. Apr. 26, 2013), report and recommendation adopted in part, rejected in part, No. C 10-04171 SBA, (N.D. Cal. Aug. 15, 2013).
Dealing with a Copyright Troll?
Funny video we did about dealing with Copyright Trolls (not that we are naming anyone in specific, it can be any copyright infringement lawyer that tries to shame people, sometimes the wrong people, by demanding exorbitant fees using a club as a weapon)
So that is a quick look at J&J Sports case that I found filed. Now some may argue that minority owned businesses may have some language barriers that prevent the proper boxing match from being purchases. If so, greater care needs to be taken to make sure IN CLEAR TERMS what fight you are buying and how the business is allowed to SHOW IT. Too many people are being bullied by hard nosed attorney who have been known to call the business owners, demand money and even hang up on this. This is NOT RIGHT and we will FIGHT against companies and their law firms that unfairly go after good, decent, honest, hard working people just trying to keep their doors open.
Contact a TV cable theft defense law firm
If you received a letter from Joe Hand Promotions, J&J Sports Productions or G&G Closed Circuit events, call us at (877) 276-5084 for a free initial consultation. In many cases we can offer low predictable flat rate fees (usually in non-litigation / settlement type cases).