TV Signal Piracy Defenses – The Internet Stream Defense?
So you just received a letter telling you that your company illegally broadcast a paid commercial fight and showed it at your restaurant, club, sports bar, tavern or nightclub without paying for the proper commercial license. Now what do you do? If the letter is to be believed, you could face over $100,000 or $60,000 in potential damages. Having dealt with the Plaintiff attorneys in this area, I can tell you they are aggressive and do not have a big heart for a “sorry I didn't mean to upset your client” plea. They will be seeking money damages usually in the five figure range. This blog talks about one potential defense to consider.
Note: a letter may come from the law firm of Jekielek & Janis, LLP.
What to do if you get a notice of infringement letter
- Don't panic
- Don't call them (they will be taking notes and may “spin” what you are telling them). Worse you you could violate the #1 in piracy defense.
- Call us for a free initial consultation
- Don't spoil evidence (meaning, destroy laptops, servers, or other evidence), if you end up defending in the lawsuit, this will come back to bite you when the ask questions at a deposition under oath.
Unauthorized broadcast of UFC fights
The main gist of these actions is that there is a boxing championship fight that is being shown commercially. You have to pay for the proper “commercial” license if you want to have the legal right to publicly display the fight in your barber shop, tattoo parlor, club or other facility. If you only have the “residential” (non-commercial) license, you cannot take your laptop into your establishment, plug it in with an HDMI cable, and broadcast the fight. Or can you? This blog talks about one UFC case that was brought in San Diego, and explains how the DEFENDANT WON on motion for summary judgement.
Watch Attorney Steve explain unauthorized broadcast law in this video
VIDEO: here is a video discussing in general what's going on in these types of legal cases. Make sure to SUBSCRIBE to our legal channel and join over 6,500 people who like our legal videos!!!
Joe Hand Promotions, Inc. vs. Michael E. Cusi et al.
Here is one case where a Defendant prevailed on a motion (MSJ) to get the case kicked out.
JOE HAND PROMOTIONS, INC., Plaintiff,
MICHAEL E. CUSI, RAQUEL REGNO and RAYMOND REGNO, individually and d/b/a THE STRONGHOLD CROSSFIT & BRAZILIAN JIU JITSU; and CGC BRAZILIAN JIU JITSU, INC., an unknown business entity d/b/a THE STRONGHOLD CROSSFIT & BRAZILIAN JIU JITSU
Plaintiff was sued by Joe Hand Promotion and in affirmative defense raised the defense that there was no commercial broadcast and simply a private viewing in a private residence. They sought (a smart move if you did not violate the law and are being wrongfully accused) and recovery of attorney's fees and costs pursuant to California Code of Civil Procedure section 1021.5, for vindicating the public interest. The Plaintiff was represented by Law Offices of Thomas P. Riley, P.C. of Pasadena.
Here are some snippets from the Court's Order on motion to dismiss:
- This action arises out of events involving the broadcast of an “Ultimate Fighting Championship” program at Stronghold CrossFit & Brazilian Jiu Jitsu (“Stronghold CrossFit”) on April 21, 2012, at 2176 Chatsworth Boulevard, San Diego, California 92107
- In its Complaint, Plaintiff asserts four claims: (1) Violation of 47 U.S.C. section 605, (2) Violation of 47 U.S.C. section 553, (3) Violation of California Business and Professions Code section 17200 et seq., and (4) conversion
- Challenge to vagueness of statutes – In J&J Sports, the defendants filed a counterclaim seeking declaratory relief on the issue of whether sections 605 and 553 were vague and overbroad. J&J Sports Productions, Inc. v. Dean, 2011 WL 4080052, at *1 (N.D. Cal. Sept. 12, 2011). In support of their counterclaim, the defendants listed specific provisions of sections 605 and 553 which were allegedly vague and/or overbroad, and emphasized the particular statutory terms that were of questionable validity. [See Doc. No. 19-1.] The district court found that the defendants' counterclaim under the First and Fifth Amendments was cognizable. J&J Sports, 2011 WL 4080052 at *6. Here, Defendants' counterclaim is superficially similar to that alleged by the defendants in J&J Sports. However, Defendants fail to state with any specificity how sections 605 and 533 are vague or overbroad. Defendants allege only that sections 605 and 553: are unconstitutionally vague and overbroad, threatening liability without fair notice and chilling their protected First Amendment activities. [Answer at 7.] This allegation is insufficient. Defendants must provide more than conclusory allegations that sections 605 and 553 are unconstitutionally vague and overbroad in order to survive the standard for 12(b)(6) motions. Without more, Defendants' counterclaim is entirely implausible.
- California anti-SLAPP discussed: Finally, Plaintiff moves under California Code of Civil Procedure § 425.16 to strike Defendants' counterclaim. Section 425.16(b)(1), which addresses Strategic Lawsuits Against Public Participation (“SLAPP”), provides, A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. Cal. Code Civ. Proc. § 4.25(b)(1). California anti-SLAPP motions are available to litigants proceeding in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206 (9th Cir. 2005). However, Plaintiff's anti-SLAPP motion must be denied because it is directed at Defendants' counterclaim, which presents a federal constitutional question. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims.”). With respect to attorney's fees and costs, the Court finds that although Plaintiff overreached on the applicability of the anti-SLAPP statute to Defendants' counterclaim, such overreach does not rise to the level of frivolity. Thus, each party is to bear its own fees and costs associated with litigating the motion.
- Defendants contend summary judgment is appropriate because Sections 605 and 553 do not apply to programs received and displayed over the internet. Defendants contend that they purchased the Event over the internet, so that their actions cannot be governed by statutes designed to combat interceptions of satellite or cable signals. Plaintiff contends that the type of internet service determines whether liability exists under Sections 503 or 605. Plaintiff states, “[w]hat Defendants fail to address is how they accessed the internet. The signal came from somewhere.” To support this proposition, Plaintiff cites Zuffa, LLC v. Kamranian, 2013 WL 1196632 (D. N.D. March 25, 2013). There, a sports bar streamed an Ultimate Fighting Championship event via the internet.
- Even assuming that Plaintiff is correct that the type of internet service determines whether liability exists under Sections 503 and 605,4 Plaintiff has failed to produce any evidence tending to demonstrate the type of internet used by Defendants. Moreover, as the discovery phase of the case is complete, Plaintiff cannot produce admissible evidence to support a necessary fact to support its claims under Sections 553 and 605. Fed. R. Civ. P. 56(c)(1)(B). Accordingly, the Court authorization. The defendant produced evidence demonstrating that it had cable internet. Accordingly, the Court dismissed the plaintiff's Section 605 claim, as Section 605 only covered “radio” (i.e., satellite) signals.
- The Court enters summary judgment in Defendants' favor on Plaintiff's federal statutory claims.
This shows that there are potential defenses to boxing piracy lawsuits and having a lawyer review your potential options is likely your best bet. Remember, these federal statutes came BEFORE the internet, so likely did not contemplate internet streaming as a means of downloading and watching UFC championship fights. If you watched a fight via a stream and the discovery period closes without Plaintiff making this finding, a MSJ might be appropriate. But again, it costs money to get to this point, and many small business owners may choose to pay a settlement as opposed to contesting this point.
Contact a streaming video defense lawyer
If you received a Joe Hand Promotions, G&G Closed Circuit Events or J&J Sports Production demand letter alleging piracy of a PPV boxing match, call us for a free initial consultation. We have helped many companies across the United States defend in this types of cases which carry substantial fines and penalties. Call (877) 276-5084.