Sony Computer Entertainment America LLC v. Zoomba LDC et al

Filing 51

STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER, individually and on behalf of www.buyps3jailbreak.webs.com, re 37 Stipulation filed by Sony Computer Entertainment America LLC. Signed by Judge Vaughn R Walker on 10/12/2010. (cgk, COURT STAFF) (Filed on 10/14/2010)

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1 TOWNSEND AND TOWNSEND AND CREW LLP JAMES G. GILLILAND, JR. (State Bar NO.1 07988) 2 TIMOTHY R. CAHN (State Bar No. 162136) HOLLY GAUDREAU (State Bar No. 209114) 3 RYAN BRICKER (State Bar No. 269100) Two Embarcadero Center, 8th Floor 4 San Francisco, California 94111 Telephone: (415) 576-0200 I Facsimile: (415) 576-0300 5 Email: jggililand(gtownsend.com.trcahn(gtownsend.com. hgaudreau(gtownsend .com, rbricker(gtownsend .com 6 JENNIFER Y. L1U (State Bar No. 164618) 7 SONY COMPUTER ENTERTAINMENT AMERICA LLC 919 East Hillsdale Boulevard, 2nd Floor 8 Foster City, California 94404 Telephone: (650) 655-8000 I Facsimile: (650) 655-8042 9 Email: jenniferJiu(gplaystation.sony.com 10 Attorneys for Plaintiff SONY COMPUTER ENTERTAINMENT AMERICA LLC 11 UNITED STATES DISTRICT COURT 12 13 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SONY COMPUTER ENTERTAINMENT 15 AMERICA LLC, a Delaware limited liability Case No. C-10-03909 VRW company, 16 17 v. Plaintiff, STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER, INDIVIDUALLY AND ON BEHALF OF ZOOMBALDC; 18 WWW.SHOPPSJAILBREAK.COM;VLAD WW.BUYPS3JAILBREAK.WEBS.COM; (PROPOSED) ORDER 19 GAZOUNE, LDC and ZOOMBA individually and doing business as WWW.SHOPPSJAILB 20 NGUYGEN, individuallyREAK.COMbusiness as and doing ; THAHN 21 Date: October 12, 2010 USATECHCITY, LTD; ARTHUR BATES II, individually and doing business as PSP PIT Time: 10:00 a.m. Dept.: Courtroom 6, 17th Floor Judge: Hon. Vaughn R. Walker 22 STOP; ess asNOOKER, individually and doing businTOM WWW.BUYPS3JAILBREAK.WEBS.COM; ALEX 23 ESQUIVEL, individually and doing business as NDSGAM 24 individually ER; BIN LE businessaka BEN LEE, and doing ZHONG as WWW.PS3BREA ON 25 FONG, individuallyKandLlNE.CbusinessFAI KING doing OM; and as WWW.PS3BREAKONLlNE.COM; and 26 HUANRAN LEE, individually and doing business 27 as rough 100, WWW.GETPS3BREAK.COM; and DOES 9 th 28 Defendants. STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER Case No. C-10-03909 VRW 1 On August 31,2010, plaintiff Sony Computer Entertainment America LLC ("SCEA") 2 filed a Complaint against defendants Zoomba LDC, ww.shoppsjailbreak.com. and Does 1 3 through 100. On October 1, 2010, SCEA filed its First Amended Complaint, adding Vi ad 4 Gazoune, individually and doing business as Zoomba LDC and ww.shoppsjailbreak.com; 5 Thanh Nguyen, individually and doing business as USATechCity, Ltd.; Arthur Bates II, 6 individually and doing business as PSP Pit Stop; Tom Nooker, individually and doing 7 business as ww.buyps3jailbreak.webs.com; Alex Esquivel, individually and doing business 8 as NDSGamer; Bin Le Zhong aka Ben Lee, individually and doing business as 9 ww.ps3breakonline.com; Fai King Fong, individually and doing business as 10 www.ps3breakonline.com; and HuanRan Lee, individually and doing business as 11 ww.getps3break.com as Defendants. 12 SCEA alleges that Defendants are traffcking in circumvention devices known as "PS3 13 Jailbreak Devices," and identified by many names, including but not limited to, "PS Jailbreak," 14 "PS3 Break," "PS3 Modchip," "PS3 Free Revolution Adapter," "PS3 Key," "PS3 Yes!," 15 "PS3break.com," "P3Free," and the "UsbBreak " (collectively, "PS3 JAILBREAK DEVICES"). 16 SCEA further alleges that certain Defendants are trafficking in "Backup Managet' software, 17 also known as, for example, SDK 1.92 ("BACKUP MANAGER"). The foregoing devices and 18 softare, as well as the softare known as, for example, "PSGroove", "PSFreedom," and 19 "OpenPSJailbreak" (collectively, "PS3 JAILBREAK SOFTWARE"), bypass technological 20 protection measures embedded within the PlayStation(83 computer entertainment system 21 developed by plaintiff SCEA in violation of federal copyright laws, including the Digital 22 Millennium Copyright Act. SCEA has also alleged that Defendants violated federal 23 trademark and unfair competition laws. 24 SCEA and Defendant Tom Nooker, individually and doing business as 25 www.buyps3jailbreak.webs.com (hereinafter "Defendant") have agreed to a preliminary 26 injunction governing this dispute upon the following stipulated facts. Each party has waived 27 the right to appeal regarding this preliminary injunction. Each party wil bear its own fees and 28 costs in connection with this preliminary injunction. Should judicial enforcement of any of the STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW 1 terms of this preliminary injunction become necessary in the future, the prevailing party will 2 be entitled to its attorneys' fees and costs. The parties agree that violation of this preliminary 3 injunction by Defendant would cause irreparable harm to SCEA, and if such a violation 4 occurs, SCEA wil be entitled to immediate relief from this Court, including but not limited to 5 appropriate monetary relief. Defendant consents to the jurisdiction of this Court to enforce 6 the terms of this injunction, including but not limited to contempt proceedings. 7 i. STIPULATED FACTS AND CONCLUSIONS 8 1. This Court has subject matter jurisdiction over this lawsuit and personal 9 jurisdiction over each of the parties for the purposes of this action. Venue is proper in this 10 Court. 11 2. SCEA markets and sells home entertainment products, including the PlayStation 3 computer entertainment system, a video game entertainment system featuring 12 13 hardware and firmware designed for the playing of video games (collectively, "the PS3 14 System"). 15 3. The PS3 System utilizes technological protection measures ("TPMs") that 16 effectively control access to copyrighted works protected under the Copyright Act, 17 U.S.C. 17 § 101, et seq., protect the rights of the copyright owners of those works, and prevent 18 unlicensed or copied softare from playing on the PS3 System. These TPMs ensure that 19 video games cannot be copied either to the PS3 System's hard drive or to an external drive 20 and are therefore essential to protect the rights of SCEA with respect to its copyrighted works 21 and/or to prevent video game piracy. 22 4. SCEA develops and publishes its own video game softare for the PS3 System 23 and also licenses third party licensees to develop interactive entertainment softare products 24 for the PS3 System. With respect to the video game softare developed and published by 25 SCEA itself, SCEA owns the valuable copyrights to the audiovisual images, stories, 26 characters and other protectable features of the copyrighted works. Among other copyright 27 registrations, SCEA has registered copyrights nos. PA 1-616-055 (Ratchet & Clank Future: 28 Tools of Destruction), PA 1-619-506 (Resistance 2), and PA 1-611-286 (Uncharted Drake's STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW 1 Fortune). SCEA's copyrighted works are referred to collectively as the "SUBJECT WORKS." 2 5. SCEA, under agreements with Sony Computer Entertainment Inc., holds the 3 exclusive license in the United States for the following trademarks, among others: 4 Registration No. 2259732 (stylized "PlayStation" word mark); 2087964 (stylized "PlayStation" 5 word mark); Registration No. 2859185 ("PS" stylized word mark); Registration No. 2863923 6 ("PS3" stylized word mark); Registration No. 3147147 ("PSP" word mark); Registration No. 7 3025454 ("PSP" stylized word mark) and Registration No. 2984420 ("PS.com" word mark). 8 The PS3, PS and PS.com marks displayed on the PS3 JAILBREAK DEVICES are virtually 9 identical to SCEA's registered marks. 10 6. Defendant has promoted, marketed, distributed, imported, sold, offered to the 11 public, provided or traffcked in technology, products, services and devices - including, 12 without limitation, the PS3 JAILBREAK DEVICES and the BACKUP MANAGER - that 13 circumvent the PS3 System's TPMs in violation of the Digital Milennium Copyright Act, 17 14 U.S.C. § 1201, et seq., and contribute to copyright infringement of the SUBJECT WORKS 15 under 17 U.S.C. § 101 et seq. Defendant conducts at least some of his business activities 16 from a website located at ww.buyps3jailbreak.webs.com. 17 7. The PS3 JAILBREAK DEVICE and the BACKUP MANAGER allow users to 18 create unauthorized and illegal copies of PlayStation 3 video games and store those copies 19 on the PS3 System's internal hard drive or on an external hard drive. The primary function of 20 the PS3 JAILBREAK DEVICE and the BACKUP MANAGER is to circumvent the TPMs 21 SCEA has implemented to protect copyrighted works, including its SUBJECT WORKS. 22 8. The PS3 JAILBREAK DEVICES and the BACKUP MANAGER, which 23 Defendant has promoted, marketed, distributed, imported, sold, offered to the public, 24 provided or trafficked in, are designed or produced primarily to bypass the TPMs in the PS3 25 System. 26 III 27 III 28 ILL STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW 1 II. ORDER 2 ACCORDINGLY, IT IS HEREBY ORDERED by consent of the parties that Defendant 3 Tom Nooker, individually and doing business as ww.buyps3jailbreak.webs.com. whether as 4 an individual or as a principal, offcer, director or employee of any business entity, and his 5 agents, attorneys, servants, employees, distributors, suppliers, representatives and all other 6 persons or entities in privity or acting in concert or participation with Defendant who receive 7 notice of this Preliminary Injunction, shall be and hereby are preliminarily enjoined and 8 restrained from: 9 1. sellng, offering for sale, marketing, advertising, promoting, installng, 10 importing, exporting, offering to the public, distributing, providing, or otherwise 11 trafficking in, any technology, product, service, device, component or part that 12 circumvents any TPM in any generation of PlayStation hardware or softare, including 13 but not limited to, any and all of the PS3 JAILBREAK DEVICES, any copies or 14 versions of the BACKUP MANAGER, any copies or versions of the PS3 JAILBREAK 15 SOFTWARE, or any other hardware or softare which bypasses the TPMs in the PS3 16 System; 17 2. sellng, offering for sale, marketing, advertising, promoting, installing, 18 importing, exporting, offering to the public, distributing, providing, or otherwise 19 trafficking in, unauthorized or ilegal copies of any generation of PlayStation video 20 games, including but not limited to, PS3 System video games; 21 3. providing links from any website to any other website selling, offering for 22 sale, marketing, advertising, promoting, installing, importing, exporting, offering to the 23 public, distributing, providing, or otherwise trafficking in any technology, product, 24 service, device, component or part that circumvents any TPM in any generation of 25 PlayStation hardware or softare, including but not limited to, any and all of the PS3 26 JAILBREAK DEVICES, any copies or versions of the BACKUP MANAGER, any 27 copies or versions of the PS3 JAILBREAK SOFTWARE, or any other hardware or 28 softare which bypasses the TPMs in the PS3 System; STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW 1 4. Assisting, facilitating or encouraging others to engage in the conduct set 2 forth above in 1-3 in violation of the Stipulated Injunction. 3 4 IT IS FURTHER ORDERED that neither Defendant, nor his officers, employees, 5 attorneys or representatives, nor any and all other persons acting in concert or participation 6 with Defendant, with notice of this Order, shall destroy, erase, delete, dispose of, or alter any 7 documents or records, in whatever format, including electronic documents, computer files, 8 computer discs and drives, that relate to, reflect, record, or contain any information regarding 9 the manufacture, distribution, promotion, marketing, advertising, purchase, sale, offer to sell, 10 trafficking, import, export, installation, payment, storage, andlor shipment of any and all of the 11 PS3 JAILBREAK DEVICES, copies or any versions of the BACKUP MANAGER, or copies or 12 any versions of the PS3 JAILBREAK SOFTWARE, or any other hardware or software which 13 bypasses the TPMs in the PS3 System, or any communications with any party concerning 14 the manufacture, distribution, promotion, marketing, advertising, purchase, sale, offer to sell, 15 trafficking, import, export, installation payment, storage, andlor shipment of any and all of the 16 PS3 JAILBREAK DEVICES, copies or any versions of the BACKUP MANAGER, copies or 17 any versions of the PS3 JAILBREAK SOFTWARE, or any other hardware or softare which 18 bypasses the TPMs in the PS3 System. 19 IT IS FURTHER ORDERED that, upon execution of this Preliminary Injunction, 20 Defendant shall preserve intact and then immediately deliver to SCEA's attorneys any and all 21 circumvention devices in Defendant's possession, custody or control, including, but not 22 limited to any and all of the PS3 JAILBREAK DEVICES, copies or any versions of the 23 BACKUP MANAGER, or copies or any versions of the PS3 JAILBREAK SOFTWARE, or any 24 other hardware or softare which bypasses the TPMs in the PS3 System. Such goods shall 25 be delivered to SCEA's attorneys at Townsend and Townsend and Crew LLP, Two 26 Embarcadero Center, Eighth Floor, San Francisco, California, 94111, Attn: Timothy R. Cahn, 27 Esq. 28 STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW IT IS FURTHER ORDERED that this Preliminary Injunction shall remain in effect until 2 entry of Judgment or until this Court orders otherwise. 3 4 The undersigned hereby stipulate to the above facts and conclusions ~nd consent to 5 the entry of this Preliminary Injunction, which may be signed in counterparts. Signatures can 6 be obtained and exchanged by facsimile. 7 8 IT IS SO STIPULATED. 9 10 DATED/Û /o2/.4/J , TOWNSEND AND TOWNSEND AND CREW LLP 1i 12 13 14 By: JAMES G GILLILAND, JR TIMOTHY R. CAHN HOLLY GAUDREAU RYAN BRICKER /í2G/ Attorneys for Plaintiff Sony Computer Entertainment ,America LLC ,/"1', '/1 ,". By: '10'2('/ /Ü:''1U...d 20 21 DEFENDANT TOM NOOKER, INDIVIDUAL.LY AND DOING BUSINESS ,A.S I,VW. buyps3jailbreak.webs com 22 23 PURSUANT TO STIPULATION, IT IS SO ORDERED. 24 25 26 27 28 ß292CJ85Î v1 DATED: 10/12/2010 HON, VAUGHN R. WALKER UNITED STATES DISTRICT JUDGE i3iiPÜlP, TED f'!lEUMiNARYiÑJUNCTiOlJ l.,ASf_~q.Ç.:': J,03e91.v'~v'' .-.----.-..-...-.6------' ...._._. ....:."..____.~______1 1 PROOF OF SERVICE 2 I, Shelley Lott, declare: 3 i am employed in the City and County of San Francisco, California; I am over the age of 18 years and not a party to the within action; my business address is Two Embarcadero 4 Center, Eighth Floor, San Francisco, California 94111. On the date set forth below, i served a true and accurate copy of the document(s) entitled: STIPULATED PRELIMINARY 5 INJUNCTION AS TO DEFENDANT TOM NOOKER, INDIVIDUALLY AND ON BEHALF OF WW.BUYPS3JAILBREAK.WEBS.COM; (PROPOSED) ORDER on the party(ies) in this 6 action by placing said copy(ies) in a sealed envelope each addressed as follows: 7 Thanh Nguyen USA Tech City Arthur Bates, Ii ww.psppitstop.com 6307 Sol Duc Dr. 8 7861 13th St., Unit 0 Westminster, California 92683 9 Email: contact(gusatechcity.com Bremerton, Washington 98311 Email: art.bates(gmac.com 10 Alex Esquivel 11 530 Buckingham Rd., Apt. #521 Richardson, Texas 75081 12 Email: alexesquiveI2004(gyahoo.com ww.ndsgamer.com Tom Nooker http://buyps3jailbreak.webs.com 1115 E. Cedar Ave. Manitowoc, Wisconsin 54220 Email: ttnooker(gyahoo.com 13 Bin Li, Esq. Law Offices of Bin Li & Associates 14 A Professional Law Corporation 17800 Castleton St. Ste 605 15 City of Industry, CA 91748 Tel: 626-839-0277 16 Fax: 626-839-0322 usbinli(gsbcglobal. net 17 Attorney for Defendants Bin Li Zhong aka Ben Lee 18 ww.ps3breakonline.com; and Fai King Fong 19 ww.ps3breakonline.com 20 Via Email only Vlad Gazoune 21 Zoomba LDC/shopPSjailbreak.com 10685-B Hazelhurst Dr. #10054 22 Houston, TX 77043 Telephone: 281-361-7200 23 Email: vladgazoune(gyahoo.com Via Email only Zoomba LDC 10685-B Hazelhurst Dr. #10054 Houston, TX 77043 Telephone: 281-361-7200 Email: vladgazoune(gyahoo.com Via Email only HuanRan Lee 24 Via Email only shopPSjailbreak.com 25 10685-B Hazelhurst Dr. #10054 ww.getps3break.com Email: .sales(ggetps3break.com and Houston, TX 77043 26 Telephone: 281-361-7200 179608325(gqq.com Email: vladgazoune(gyahoo.com 27 28 collecting and processing documents for mailing with the United States Postal Service. On the date listed herein, following ordinary business practice, i served the within document(s) STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER 7 CASE NO. C-10-03909 VRW D (By First Class Mail) i am readily familar with my employer's practice for i: (By Overnight Courier) I caused each envelope to be delivered by a 4 commercial carrier service for overnight delivery to the offices of the addressee(s). 5 D (By Hand) I directed each envelope to the party(ies) so designated on the service list to be delivered by courier this date. 6 7 transmission to the fax number indicated for the party(ies) listed above. D (By Facsimile Transmission) i caused said document to be sent by facsimile 8 i: (By Electronic Transmission) I caused said document to be sent by electronic transmission to the e-mail address(es) indicated for the party(ies) listed above. 9 i declare under penalty of perjury that the foregoin s true and correct and that this 10 declaration was executed this date at San Francisco, Ca ria. 11 12 13 Dated: October 7,2010 14 15 16 17 18 19 20. 21 22 23 24 25 26 27 28 STIPULATED PRELIMINARY INJUNCTION AS TO DEFENDANT TOM NOOKER; PROPOSED ORDER CASE NO. C-10-03909 VRW

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