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Caracol Television S.A. v. TVmia International, Corp.

United States District Court, S.D. Florida

December 11, 2017

Caracol Television, S.A. and Caracol Television, Inc., Plaintiffs,
v.
TVmia International Corp., and

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court upon the Plaintiffs Caracol Television, S.A. and Caracol Television, Inc.'s motion for summary judgment (ECF No. 157). The Defendants Eduardo Perez Bucci and Marcelo J. Adarvez, proceeding pro se, filed a response (ECF No. 162), to which the Plaintiffs replied (ECF No. 163). Following careful consideration of the motion, all supporting and opposing submissions, the record in this case and the applicable law, the Court grants the motion as to Defendant Bucci, and denies the motion as to Defendant Adarvez.

         1. Background and Relevant Facts [1]

         The Plaintiffs initiated this action against multiple defendants, including TVmia International, Corp, TeVeYa, Corp., World Pass Communications Corp., Bucci, and Adarvez, asserting claims for copyright and trademark infringement (Compl., ECF No. 1.) Defaults have been entered against the corporate defendants. (See ECF Nos. 123, 130.)

         The following facts are undisputed. Caracol Television, S.A. produces and compiles television programming in Colombia, which is transmitted and distributed by Caracol Television, Inc. and other authorized entities, throughout Colombia and the world. Caracol Television, Inc. is the exclusive licensing agent for original programming and the exclusive licensee for distribution of the Caracol International Channel in the United States. (Pls.' Statement of Material Facts (“SOMF”), ECF No. 158 ¶ 3.) Bucci created TVmia International Corp. in 2011, through which television signals from one country are retransmitted to users in another. (Id., ¶¶ 4-5.) Subscribers pay a fee for access to the Caracol channel on the satelitecolombia.com website, created by Bucci. (Id., ¶ 7.) However, TVmia does this without the consent of the television networks. (Id., ¶ 6.) Bucci is also associated with the websites for TeVeYa and diplomaticostv.com, which streamed Caracol content as well. (Id., ¶¶ 9, 13-14.) Despite numerous notices of potential infringement, the rebroadcasting and streaming continued. (Id., ¶¶ 12-13, 19-23, 28.)

         Bucci served as the president of TVmia until 2014, when he sold the satelitecolombia.com and teveya.com websites to their current owner, Hector Maturan. (Id., ¶ 17.) Adarvez served as the vice president of TVmia, and then its president, following Bucci's resignation. (Id., ¶¶ 44, 53-54.) Adarvez promoted TVmia. (Id., ¶ 55.) In fact, the Caracol logos and name were used on the TeVeYa application, TVmia.com, satelitecolombia.com, and diplomaticostv.com to indicate the unauthorized Caracol stream. (Id., ¶¶ 59.)

         After filing suit, the Plaintiffs filed a motion for preliminary injunction, arguing that the Defendants continued to infringe by streaming Caracol content on their associated websites, even after being served with take-down notices and notices of potential infringement. (ECF No. 43.) The Defendants did not object to the entry of a preliminary injunction, so the Court granted the motion. (ECF No. 54.) Thereafter, the Plaintiffs filed a motion for contempt (ECF No. 55) against the Defendants based upon their continuing to stream unauthorized Caracol content via the satelitecolombia.com website. In response, the Defendants claimed that they had no control over what was being disseminated over the website. (ECF No. 61) Following a hearing on the motion, the Magistrate Judge certified the following facts: Caracol content continued to be video streamed after the effective date of the preliminary injunction via satelitecolombia.com, which was accessible to TVmia subscribers; Bucci controls satelitecolombia.com; the sale of satelitecolombia.com to Maturan was a sham and Bucci continued to control the site; and, that notwithstanding his resignation, Bucci continued to control TVmia's internet operations and finances. (See R. & R., ECF No. 151.) Thus, the Magistrate Judge recommended that the Court grant the motion for contempt and enter an order of contempt against Bucci. (Id.) The Court adopted the Magistrate Judge's report and recommendation (ECF No. 154), and entered an order of civil contempt (ECF No. 155) against Bucci.

         2. Legal Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. “An issue of fact is ‘material' if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260.

         All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

         Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Id. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id.

         3. Analysis

         Based upon the evidence presented and the undisputed facts, the Plaintiffs are entitled to summary judgment against Bucci upon their copyright and trademark infringement claims, but not against Adarvez. While neither Defendant offers relevant opposing facts or evidence to dispute the evidence provided by the Plaintiffs, upon a review of the record, a genuine issue of material fact remains with respect to the claims against Adarvez.

         a. The Plaintiffs are entitled to summary judgment against Bucci ...


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