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)
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
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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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