Private Awarded $500,000 in XonDemand Suit

Feb 1, 2012 3:45 PM PST

LOS ANGELES — Private Media Group received a green light this afternoon from a federal judge to collect $500,000 from the operators of XonDemand.com.

XonDemand.com had earlier been found liable for infringing on 30 of Private's movies, with Private seeking up to $4.5 million in damages.

But U.S. Judge John Kronstadt said that after reviewing supplemental materials, Private still hadn't provided enough evidence to support the $4.5 million demand.

Private counsel recently supplied licensing agreements, including an explanation of their terms — a 50 percent revenue-share deal — to the court in their request for the multimillion-dollar award.

"Although the new submissions show that [Private] entered licensing agreements with others and the terms of such agreements, once again no admissible evidence has been provided as to the  amount of revenues generated by these agreements and how they compare to what [Private] received from [XonDemand] during the period when it was a licensee," Kronstadt said in his ruling.

"Moreover, [Private] still has not provided persuasive evidence as to what other, ancillary revenues [XonDemand] may have generated as a result of its infringing activities."

But, in the end, Kronstadt said that because XonDemand was liable for piracy of 30 titles of the more than 200 titles originally licensed, or about 15 percent of them, he would award statutory damages of $500,000, plus attorneys fees.

Kronstadt in his decision noted that he weighed the value of the infringment in terms of lost revenue as well as the societal value of the deterrent effect of a judgment in the case.

Private spokesman Jason Tucker told XBIZ that “this was not a straightforward copyright infringement case."

"This case was the byproduct of a terminated agreement so again it was not as clear cut as our other cases," he said. ""We are happy with the judgment and look forward to collecting it from XOD and personally from its president, Frank Ryan.”

The case against XonDemand began in August 2010 when Barcelona-based Private said it discovered  that XonDemand was "committing over 30 separate instances of copyright infringement and over 1,000 separate and distinct instances of trademark infringement" by continuing to rent Private videos by the minute or flat rate after a deal between the two companies was terminated.

XonDemand contended it never received a termination letter, all the while paying commissions to Private, and that it removed content "immediately after someone at XonDemand learned of this lawsuit."

Later, industry attorney Clyde DeWitt told the court that he had difficulties with his client, XonDemand, because the company has only paid a fraction of its attorneys fees and that he'd been having difficulty communicating with the company, specifically Ryan, XonDemand's president, who didn't return messages.

At one point, a settlement deal was in the works to transfer XonDemand.com to Private, Tucker earlier told XBIZ.

"The settlement agreement was all there, but we never got the signature," he said at the time.

XonDemand has been without representation in recent courtroom proceedings against the company, including Wednesday's hearing in Kronstadt's courtroom.

XBIZ was unable to reach Ryan by post time.

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