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Joe Hand Promotions, Inc. v. Chavez

United States District Court, D. Oregon, Eugene Division

June 25, 2018

JOE HAND PROMOTIONS, INC., Broadcast Licensee of the November 21, 2015 Cotto/Canelo Program, Plaintiff,
v.
SOTERO ENCISO CHAVEZ, an individual, and SOTENO LLC, d/b/a SEVEN SEAS RESTAUTRANT & BAR, a/k/a 7 MARES RESTAURANT, Defendants.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff, Joe Hand Promotions, Inc., initiated this action on October 10, 2017 against defendants, Sotero Enciso Chavez and Soten LLC, doing business as Seven Seas Restaurant & Bar ("7 Mares Restaurant"). Plaintiff alleges defendants infringed plaintiffs exclusive rights under sections 553 and 605 of the Communications Act by illegally intercepting and exhibiting the Cotto vs. Canelo broadcast (the "Program") on November 21, 2015. Further, plaintiff alleges the conduct of defendants has and will continue to cause harm to plaintiff unless the unlawful activity is enjoined.

         DISCUSSION

         The Court entered an order of default against defendant on January 23, 2018. Plaintiff now moves for default judgment against defendants. Specifically, plaintiff seeks statutory damages from each defendant in the amount of $15, 000, a permanent injunction, attorney fees in the amount of $3, 022, and costs in the amount of $1, 150.

         I. 47 U.S.C. § 553 and § 605

         To establish a claim of unlawful interception of satellite programs, plaintiff must demonstrate that it has a proprietary interest in the Program, and that the defendants unlawfully intercepted, received, published, displayed, and/or exhibited the Program without plaintiffs authorization. 47 U.S.C. § 553(a); 47 U.S.C. § 605(a); J&J Sports Prods, v. Segura, 2018 U.S. Dist. LEXIS 66291, *8-9 (N.D. Cal. 2018), Direct evidence of unlawful satellite interception is not required to establish a violation under sections 553 or 605. DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). Circumstantial evidence may be equally persuasive. Id.

         Upon default, the factual allegations of the complaint are taken as true, except the allegations relating to the amount of damages. Geddes v. United Financial Group), 559 F.2d 557, 560 (9th Cir. 1977). The complaint establishes that plaintiff had a proprietary interest in the Program and that defendants were not on Oregon's list of authorized commercial purchasers of the Program.[1] Pl.'s Comp. at 4-5, Defendant 7 Mares Restaurant is a commercial establishment and, as such, could only have lawfully obtained the Program if plaintiff had contracted with defendants for the rights to show it. While plaintiff is unable to determine the direct method of interception, an auditor witnessed the Program being displayed on five television sets at defendants' commercial establishment. Pl.'s Aff. Ex. A, at 7. Taking the allegations as true, plaintiffs complaint establishes the elements of unlawful satellite interception required to state a claim under sections 553 and 605.

         II. Vicario us Liability

         Plaintiff claims defendant Sotero Enciso Chavez should be held personally liable, alongside defendant 7 Mares Restaurant, for the unlawful activities occurring within the restaurant on November 21, 2015. In order for defendant Chavez to be held liable, plaintiff must demonstrate that he authorized the violations alleged in the complaint, or had a "right and ability to supervise" the violations and a strong financial interest in such activities. Joe Hand Promotions, Inc. v. Prezio, 2009 U.S. Dist. LEXIS 137101, *4-5 (S, D. Cal. 2009) (citing J&J Sports Prods, v. Potions Bar & Lounge, Inc., 2009 WL 763624, *9 (E.D.N.Y. 2009)).

         Plaintiff contends that defendant Sotero Enciso Chavez is the owner/operator of 7 Mares Restaurant, where the violation took place, and has oversight and management thereof. Pl.'s Comp. at 2-3. Plaintiff further alleges defendant Chavez received a financial benefit from the operations of 7 Mares Restaurant. Id. at 3. As these allegations are undisputed, the Court finds this ownership/operation and strong financial interest sufficient to establish vicarious liability.

         III. Statutory Damages Under 47 U.S.C. § 605(e)(3)(C)(i)(lI)

         A plaintiff may elect to recover damages under sections 553 and 605, but not both. J&J Sports Prods, v. Ro, 2010 U.S. Dist. LEXIS 21425, *8 (N.D. Cal. 2010). Here, plaintiff elects to recover damages under section 605(a). Pl.'s Mem. in Supp. of Default J. at 10. Plaintiff is entitled to recover actual damages attributable to the unauthorized interception of the Program or may elect to recover statutory damages. Plaintiff seeks statutory damages in the amount of $5, 000 and enhanced statutory damages in the amount of $10, 000 from each defendant. The court may award statutory damages "in a sum of not less than $1, 000 or more than $10, 000." 47 U.S.C. § 605(e)(3)(C)(i)(II). However, where the interception is committed willfully, "the court in its discretion may increase the award of damages ... by an amount not more than $100, 000." 47 U.S.C. § 605(e)(3)(C)(ii).

         Courts use a variety of methods for calculating an award of statutory damages under section 605. "A traditional method of determining statutory damages is to estimate either the loss incurred by the plaintiff or the profits made by the defendants." Garden City Boxing Club, Inc. v. Zavala, 2008 U.S. Dist. LEXIS 79647, *3 (N.D. Cal. 2008). See also Joe Hand Promotions, Inc. v. Holmes, 2015 U.S. Dist. LEXIS 116899, *20 (D. Or. 2005); Kingvision Pay-Per-View, Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).

         Following the traditional approach, the Court considers the losses and profits resulting from defendants' unlawful interception. In this case, it would be impossible to calculate the full extent of the profits obtained by defendants; however, plaintiff indicates that defendants' cost to legally license the Program would have been $4, 200. Pl.'s Mem. in Supp. of Default J. at 13. The Court shall base the award of statutory damages off of the cost of the licensing fee had the defendants legally purchased the Program. The Court finds that ...


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