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Joe Hand Promotions, Inc v. Marc Parlavecchio

September 1, 2011

JOE HAND PROMOTIONS, INC., PLAINTIFF,
v.
MARC PARLAVECCHIO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myersc0ugh, U.S. District Judge:

E-FILED

Thursday, 01 September, 2011 05:01:17 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, Joe Hand Promotions, Inc., brought this action alleging that Defendants Jim Drewes, Tammy Drewes, and Daniel Osborne d/b/a and DJT Fieldhouse, Inc. d/b/a Fieldhouse Pizza & Pub, and DJT Fieldhouse, Inc. d/b/a Fieldhouse Pizza & Pub knowingly and willfully violated 47 U.S.C §§ 553 and 605 by unlawfully intercepting and exhibiting UFC 91 on November 15, 2008. Defendants Jim Drewes, Tammy Drewes, and Osborne have failed to answer the Complaint. United States Magistrate Judge Byron Cudmore entered default against Defendants on July 13, 2011. The matter is now before the Court on Plaintiff's Motion for Default Judgment as to Defendants Jim Drewes, Tammy Drewes, and Daniel Osborne in which Plaintiff seeks an award of damages, attorneys fees, and costs. See d/e 33 (the "Motion").

FACTS

Plaintiff alleges that Defendants violated §§ 553 and 605. Plaintiff cannot recover under both §§ 553 and 605 because those sections target two different types of piracy. See United States v. Norris, 88 F.3d 462, 468 (7th Cir. 1996) (holding § 553 governs the interception of cable television programming traveling over a cable network, while § 605 governs the interception of programming as it travels through the air). However, without the benefit of discovery or an admission from Defendants, Plaintiff cannot determine whether Defendants intercepted the signal via cable or satellite.

Plaintiff's Motion states that "statutory liquidated damages" for each violation of § 553 is $60,000 and for each violation of § 605 is $110,000. The Motion only requests that this Court award Plaintiff $15,000 as "statutory liquidated damages," but does not specify whether Plaintiff is requesting relief under § 553 or § 605.

ANALYSIS

1. Liability

Due to Defendants' failure to answer the Complaint, Defendants are deemed to have unlawfully intercepted the program and shown it to their patrons. Joe Hand Promotions, Inc. v. Ewer, 2009 WL 3269658, at *1 (E.D. Wis. 2009). Defendants are also deemed to have done so willfully and for the purposes of commercial advantage or private financial gain. Id. Defendants have forfeited their ability to contest their personal liability for the violation alleged by Plaintiff, as Defendants are deemed to have had the necessary supervisory control over the interception of the program and received the financial benefit of the same. Id. at *2 (citing J & J Sports Productions, Inc. v. Ribeiro, 562 F. Supp. 2d 498 (S.D. N.Y. 2008) (individual who was officer, director, shareholder, and/or principal of corporation that operated bar was liable in her individual capacity for the bar's unlawful interception and exhibition of pay-per-view boxing match, where the individual had supervisory control over interception and received a financial benefit therefrom).

2. Damages

Under § 553(c)(3)(A), an aggrieved party may recover: (1) their actual damages and any profits of the violator, or (2) statutory damages in a sum not less than $250 or more than $10,000. In any case in which the court finds that the violation was committed willfully and for the purpose of commercial advantage or private financial gain, the court has the discretion to increase the award of damages by an amount not more than $50,000. 47 U.S.C. § 553(c)(3)(B).

Section 605(e)(3)(C)(i) allows the aggrieved party to elect the method by which to calculate damages. A party may elect to recover: (1) actual damages suffered by him and any profits of the violator, or (2) statutory damages for each violation of § 605(a) of not less that $1,000 or more than $10,000. 47 U.S.C. § 605(e)(3)(C)(i). In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court may ...


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