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 (UFC)
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 they 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 barbershop, tattoo parlor, club or another 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 16,000 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, the 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, the Defendants' counterclaim is entirely implausible.
- California anti-SLAPP discussed: Finally, the Plaintiff moves under California Code of Civil Procedure § 425.16 to strike the 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.
Joe Hand Promotions may bring case as a Copyright Infringement case
Here is a sample of one complaint I reviewed (not filed, but sent to me as a demand letter) which shows the copyright claim being made:
21. Pursuant to the contract, Plaintiff entered into subsequent agreements with various entities in the State of California, allowing them to publicly exhibit the Program to their patrons.
22. Plaintiff expended substantial monies in consideration of the aforementioned agreement to transmit the Program to those entities in the State of California, which in turn, entered into agreements with Plaintiff to exhibit the Program to their patrons.
23. In order for anyone to obtain the Broadcast through a website intended for private, non- commercial viewing, an individual purchaser would be provided with terms of service which specifically provide for non-commercial, personal use only.
24. Upon information and belief, with full knowledge that the Program was not to be received and exhibited by entities unauthorized to do so, the Defendants and/or their agent, servant, workmen or employees unlawfully intercepted, received and/or de-scrambled said satellite signal and did exhibit the Program at the above-captioned address at the time of its transmission willfully and for purposes of direct or indirect commercial advantage or private financial gain.
25. Upon information and belief, Defendants and/or their agent, servant, workmen and/or employees intercepted Plaintiff's signal and/or used a device to intercept Plaintiff's Broadcast, which originated via satellite uplink and then re-transmitted via satellite or microwave signal to various cable and satellite systems. There are multiple illegal and unauthorized methods of accessing the Broadcast, including but not limited to the traditional ways of pirating a broadcast
(1) splicing an additional coaxial cable line or redirecting a wireless signal from an adjacent residence into a business establishment, de-crypt, unscramble and receive the closed circuit, “IPTV”, cable or satellite Broadcast;
(2) commercially misusing cable or satellite by registering same as a residence when it is, in fact, a business;
(3) taking a lawfully obtained box or satellite receiver from a private residence, into a business. Recently emerging over-the-top “OTT” technologies, used for the delivery of film and TV content via the internet, such as (1) Broadband or internet broadcast; and/or (2) Live Social Media Streaming (“Nano-Piracy”) are additional methods in which pirated material can be obtained without requiring users to subscribe to a traditional cable or satellite pay-tv service such as Comcast, DIRECTV or Time Warner Cable and are readily available to anyone with a Smartphone.
The misuse of OTT technology can allow commercial misuse of residential broadcasting feeds through the internet from anywhere in the world. Each of the above described methods would allow Defendants to access the Broadcast unlawfully and without Plaintiffs authorization. Prior to engaging in discovery, Plaintiff is unable to determine the manner in which Defendants obtained the Broadcast. However, it is logical to conclude that Defendants utilized one of the above described methods or another to intercept and exhibit the Broadcast without entering into an agreement to obtain it lawfully from Plaintiff, the legal rights holder for commercial exhibition.
26. 47 U.S.C. '605 (a) prohibits the unauthorized reception and publication or use of communications such as the transmission for which plaintiff had the distribution rights thereto.
27. By reason of the aforementioned conduct, the aforementioned Defendants willfully violated 47 U.S.C. '605 (a).
28. By reason of the aforementioned Defendants' violation of 47 U.S.C. '605 (a), Plaintiff has a private right of action pursuant to 47 U.S.C. '605.
29. As a result of the aforementioned Defendants' willful violation of 47 U.S.C. '605 (a), Plaintiff is entitled to damages in the discretion of this Court, under 47 U.S.C. '605 (e)(3)(C)(i)(II)
and (ii) of up to $110,000.00 as to each Defendant.
30. Pursuant to 47 U.S.C. '605,
Plaintiff is also entitled to an award of full costs, interest and reasonable attorneys fees.
31. Plaintiff hereby incorporates paragraphs A1"through A30"as though fully set forth herein.
32. Upon information and belief, with full knowledge that the Program was not to be received and exhibited by entities unauthorized to do so, the Defendants and/or their agent, servants workmen or employees did exhibit the Program at the above-captioned address at the time of its transmission willfully and for purposes of direct or indirect commercial advantage or private financial gain.
33. 47 U.S.C. '553 prohibits the unauthorized reception, interception and exhibition of any communications service offered over a cable system such as the transmission for which Plaintiff had the distribution rights thereto.
34. Upon information and belief, the Defendants individually, willfully and illegally intercepted said Program when it was distributed and shown by cable television systems.
35. By reason of the aforementioned conduct, the Defendants willfully violated 47 U.S.C. '553, thereby giving rise to a private right of action.
36. As a result of the Defendant's violation of 47 U.S.C. '553, Plaintiff is entitled to damages in an amount in the discretion of this Court, of up to $60,000.00, plus the recovery of full costs, interest and reasonable attorneys fees.
37. Plaintiff hereby incorporates paragraphs “1" through “36” as though fully set forth herein.
38. Plaintiff, by contract, is the copyright owner of the exclusive rights of distribution and public performance as to commercial establishments to the broadcast, including all undercard matches and the entire television Broadcast for Pacquiao v. Thurman, scheduled for July 20, 2019, via closed circuit television and via encrypted satellite signal. The Certificate of Registration was filed with the U.S. Copyright Office on August 15, 2019 under Registration Number PA 2-194-934. The Broadcast originated via satellite uplink and was subsequently re-transmitted to cable systems and satellite companies via satellite signal.
39. As a copyright holder of the above mentioned rights to the Broadcast, Plaintiff has rights to the Broadcast, including the right of distribution as well as the licensing to commercial establishments for the right to publicly exhibit same.
40. Defendants never obtained the proper authority or license from Plaintiff to publicly exhibit the Pacquiao v. Thurman Broadcast on July 20, 2019.
41. Upon information and belief, with full knowledge that the Broadcast can only be exhibited within a commercial establishment by the purchasing of a license from Plaintiff, Defendants and/or their agents, servants, workmen or employees illegally intercepted and/or publicly displayed the Broadcast and exhibited same in her commercial establishment on July 20, 2019.
42. Specifically, upon information and belief, the Defendants and/or their agents, servants, workmen and employees unlawfully obtained the Broadcast, enabling Defendants to publicly exhibit the Broadcast without paying the appropriate licensing fee to Plaintiff.
43. By reason of the aforementioned conduct, the Defendants willfully violated 17 U.S.C.
44. By reason of the aforementioned Defendants violation of 17 U.S.C. §501(a), Plaintiff
has a private right of action pursuant to 17 U.S.C. §501(b).
45. As a result of Defendants willful copyright infringement of Plaintiff's copyrights and exclusive rights under copyright by advertising and subsequently displaying Plaintiff's Broadcast, Plaintiff is entitled to damages, in the discretion of this Court, under 17 U.S.C. §504(c)(1) and 504(c)(2), of up to the maximum amount of $150,000.00.
Contact a streaming video copyright infringement 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.