Dish Network L.L.C. et al v. Dillion et al
Filing
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ORDER Granting Preliminary Injunction. The preliminary injunction shall remain in effect until further order of the Court. Signed by Judge Barry Ted Moskowitz on 2/3/12.(ecs)(jrd)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DISH NETWORK LLC, ECHOSTAR
TECHNOLOGIES LLC, and
NAGRASTAR LLC,
Case No. 12cv157 BTM(NLS)
ORDER GRANTING PRELIMINARY
INJUNCTION
Plaintiffs,
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v.
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MILES DILLION and DOES 1-10 d/b/a
www.myfreeneeds.tv and
www.myfreeneeds.com,
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Defendants.
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In an order filed on January 23, 2012, the Court granted Plaintiff’s ex parte motion for
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a temporary restraining order, seizure, and impoundment, and ordered Defendants to show
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cause why a preliminary injunction should not be entered. The Court held a hearing on the
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OSC on February 1, 2012. Defendants did not file any opposition papers and did not appear.
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For the reasons discussed below, the Court GRANTS Plaintiffs’ motion for preliminary
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injunction.
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I. FACTS
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DISH Network LLC (“DISH”) provides copyrighted satellite television programming to
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approximately 14 million subscribers throughout the United States. (Duval Decl. ¶¶ 4-5.) To
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limit its programming to authorized subscribers, DISH encrypts its satellite signal, and
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authorized subscribers are provided with the necessary equipment (dish antenna, receiver,
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and smart card) to decrypt the signal and view the programming. (Id. at ¶¶ 6-7.) Defendant
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EchoStar Technologies (“EchoStar”) provides receivers and dish antenna for the DISH
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Network system. (Id. at ¶ 7.) Smart cards and other propriety security technologies are
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supplied by NagraStar LLC (“Nagrastar”). (Id.)
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The receiver and smart card work together to convert DISH’s encrypted satellite signal
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into viewable programming that can be displayed on the attached TV of an authorized DISH
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subscriber. (Id. at 10.) The receiver processes an incoming DISH satellite signal by locating
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an encrypted part of the transmission (the “entitlement control message”) and forwarding it
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to the smart card. (Id.) The smart card, which stores data called decryption keys, unlocks
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the message by uncovering a control word and transmits the control word back to the
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receiver. Id.
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Satellite television pirates have developed methods for circumventing DISH ’s security
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system and intercepting DISH programming. One method involves loading software
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containing the proprietary data and keys to DISH’s security system (“piracy software”) onto
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circuit chips within unauthorized receivers, mimicking legitimate NagraStar smart cards. (Id.
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at 11.) Another method involves “control word sharing” or “internet key sharing”: a pirate
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computer server sends descrambling codes (often extracted from a paid subscription) to
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internet end-users who have downloaded piracy software onto their receivers so that their
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receivers are programmed to receive the descrambling control words and utilize the control
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words to descramble DISH programming. (Id. at ¶¶ 13-15.)
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The domain www.myfreeneeds.com was created on April 8, 2010. (Gee Decl. ¶ 7.)
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Prior to the issuance of the TRO, this domain automatically redirected visitors to
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www.myfreeneeds.tv, a subsequently created domain. (Id. at ¶ 13.) WHOIS historical
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records identify the registrant of www.myfreeneeds.com as “Miles Dillion.” (Id. at ¶ 8.) The
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registrants of www.myfreeneeds.tv are not currently known because the registrants used a
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proxy service, PrivacyProtect.org, which conceals their identities. (Id. at ¶ 10.) (This Order
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refers to both domains as the “MFN website.”)
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The MFN website has over 40,000 registered members. (Gee Decl. ¶ 18.) Based on
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an investigation by Nagrastar, it was determined that all 120 different files made available
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for download through the MFN domains are capable of stealing unlimited amounts of DISH
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satellite television programming. (McMullen Decl. ¶ 22.) Each of the 120 different files are
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pirate software files used to enable unauthorized devices to intercept, receive, and decrypt
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DISH satellite television programming by circumventing DISH’s security system. (Id.) A
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detailed description of the different software files is set forth in ¶¶ 23-142 of the McMullen
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Declaration.
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On January 23, 2012, the Court granted Plaintiff’s ex parte motion for temporary
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restraining order, seizure, and impoundment. On January 27, 2012, Verisign transferred
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myfreeneeds.com and myfreeneeds.tv to GoDaddy and GoDaddy put them on lock down
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status and took them offline. (Hagan Decl. dated Jan. 31, 2012, ¶ 20.) On January 28,
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2012, the webmaster@myfreeneeds.net sent an email to all MFN members, explaining that
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DISH had seized their domains but that they were back “stronger then [sic] ever.” (Ex. 10
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to Hagan Decl.) The email stated, “No need to be afraid we at this point still the most secure
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forum on the web as they did NOT get access to the data or server and never will.” On
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January 29, Mr. Hagan confirmed that Defendants had relaunched their content on
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myfreeneeds.net. (Id. at ¶ 22.) The structure and content of the .net website is virtually
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identical to the .com and .tv websites. (Id.) On the .net website an administrator, “Mr
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Sonicview,” explained that although the myfreeneeds.com and myfreeneeds.tv domains were
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being “redirected” to DISH, DISH did not have access to their servers. (Ex. 12 to Hagan
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Decl.) The administrator stated, “Do not be supprized [sic] if you see us change the domain
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out of the country once again very fast.” The administrator also stated, “Dish is pathetic if
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they think they can stop the freedom of speech.”
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II. STANDARD
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A plaintiff seeking a preliminary injunction or temporary restraining order must
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establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable
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harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4)
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an injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S.
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7, 20 (2008).
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The Ninth Circuit has held that the “sliding scale” approach to preliminary injunctions
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survives Winter when applied as part of the four-element Winter test. Alliance for the Wild
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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In other words, “‘serious questions
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going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can
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support issuance of a preliminary injunction, so long as the plaintiff also shows that there is
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a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135.
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III. DISCUSSION
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The Court is convinced that Plaintiffs are entitled to a preliminary injunction. As
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discussed below, Plaintiffs have established that they are likely to succeed on the merits,
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they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of
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equities tip in their favor, and an injunction is in the public interest.
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A. Merits of Plaintiff’s Legal Claims
Based on the evidence before the Court, it appears that Plaintiffs are likely to succeed
on the merits of all of their legal claims.
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1. Digital Millennium Copyright Act (“DMCA”)
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Plaintiffs’ first cause of action alleges that Defendants violated 17 U.S.C. § 1201(a)(2).
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Plaintiff’s third cause of action alleges that Defendants violated 17 U.S.C. § 1201(a)(1).
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Section 1201(a)(1)(A) prohibits the circumvention of technology controlling access to
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copyrighted works. The statute provides: “No person shall circumvent a technological
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measure that effectively controls access to a work protected under this title.”
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Section 1201(a)(2) provides, in relevant part: “No person shall manufacture, import,
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offer to the public, provide, or otherwise traffic in any technology, product, service, device,
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component, or part thereof, that . . . is primarily designed or produced for the purpose of
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circumventing a technological measure that effectively controls access to a work protected
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under this title.”
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Plaintiffs have shown that Defendants provided their members with software that
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enables them to circumvent DISH’s security measures and intercept copyrighted
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programming. Therefore, Defendants are likely to succeed on their claims under Section
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1201(a)(1)(A) as well as Section 1201(a)(2). See Dish Network,LLC v. Satfta, 2011 WL
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856268, at * 4 (N.D. Cal. March 9, 2011); Dish Network LLC v. Whitcomb, 2011 WL
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1559825, at * 3 (S.D. Cal. Apr. 25, 2011).
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2. Communications Act of 1934
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Plaintiffs’ second and fourth causes of action allege that Defendants violated the
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Communications Act of 1934, as amended, 47 U.S.C. §§ 605(a) and (e)(4).
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Section 605(a) provides in relevant part: “No person not being entitled thereto shall
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receive or assist in receiving any interstate or foreign communication by radio and use such
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communication (or any information therein contained) for his own benefit or for the benefit
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of another not entitled thereto.”
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Section 605(e)(4) provides: “Any person who manufactures, assembles, modifies,
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imports, exports, sells, or distributes any electronic, mechanical, or other device or
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equipment, knowing or having reason to know that the device or equipment is primarily of
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assistance in the unauthorized decryption of satellite cable programming, or direct-to-home
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satellite services, or is intended for any other activity prohibited by subsection (a) of this
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section, shall be fined not more than $500,000 for each violation, or imprisoned for not more
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than 5 years for each violation, or both.”
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Satellite transmissions intended for fee-paying subscribers fall within the definition of
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radio communications under the Act. See Cable/Home Commc’n Corp. v. Network Prods,
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Inc., 902 F.2d 829, 848 (11th Cir. 1990); DirecTV v. Hendrix, 2005 WL 757562, at *3 (N.D.
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Cal. Apr. 1, 2005). Plaintiffs have shown that they are likely to prevail on their claim that
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Defendants violated Section 605(a), by assisting their members in the unauthorized receipt
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and decryption of DISH’s satellite transmissions. See Satfta, 2011 WL 856268, at * 5.
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Courts have held that piracy software files, designed to assist in the unauthorized
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interception of satellite programming, constitute a “device” or “equipment” within the meaning
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of Section 605(e)(4). See Dish Network, LLC v. Whitehead, 2011 WL 6181732, at * 4-5
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(M.D. Fla. Dec. 13, 2011). There is ample evidence that Defendants have distributed piracy
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software through their MFN website, and that the sole purpose of the software was to assist
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in the unauthorized decryption of DISH’s satellite cable programming.
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3. Electronic Communications Privacy Act
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Plaintiffs’ sixth cause of action alleges that Defendants violated the Electronic
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Communications Privacy Act, 18 U.S.C. § 2511(1)(a). Under Section 2511(1)(1), any person
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who “intentionally intercepts, endeavors to intercept, or procures any other person to
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intercept or endeavor to intercept, any wire, oral, or electronic communication,” shall be
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subject to punishment as provided in subsection (4), or shall be subject to suit as provided
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in subsection (5). Section 2520 provides for a private right of action.
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Satellite signals are “electronic communications,” and the interception of such signals
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constitute a violation of Section 2511. See United States v. Lande, 968 F.2d 970 (9th Cir.
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1992) (holding that defendant who modified descrambler units to enable home satellite dish
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owners to view scrambled pay television programming without payment violated Section
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2511). The evidence before the Court indicates that Defendants intentionally intercepted
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or assisted others in intercepting DISH’s satellite transmissions. Therefore, Defendants have
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shown a likelihood of success on this claim.
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B. Other Preliminary Injunction Factors
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Plaintiff have established that they will suffer irreparable harm in the absence of
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injunctive relief. Defendants are assisting numerous users to engage in piracy and obtain
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unlimited access to DISH programming, including premium and pay-per-view channels.
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(Duval Decl. ¶ 19.) The piracy results in lost revenue to DISH, who sells the subscriptions,
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as well as NagraStar and EchoStar, who sell receivers, smart cards, and related technology
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to legitimate DISH subscribers. (Id.) Furthermore, piracy harms the reputation of Plaintiffs,
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which is built on the delivery of secured content. (Id. at ¶ 18.) It would be very difficult to
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quantify Plaintiffs’ lost revenue and reputational damage and make Plaintiffs whole.
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The balance of hardships tips sharply in favor of DISH. As long as Defendants
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operate their websites designed to help others circumvent DISH’s security system and obtain
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free television programming, DISH continues to suffer monetary and reputational harm.
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There is no evidence that Defendants websites have any legitimate purpose. Defendants
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have shown that they have no regard for the law by relaunching their website on
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myfreeneeds.net after the Court issued the TRO. Defendants have flaunted the Court’s
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order and have made it clear that they will continue their illegal activities until they are
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caught.
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Finally, the public has a strong interest in the enforcement of anti-piracy legislation.
See Whitcomb, 2011 WL 1559825, at * 4.
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III. CONCLUSION
For the reasons discussed above, Defendant’s motion for preliminary injunction is
GRANTED.
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It is hereby ORDERED that, pending a further order of the Court, Defendants and any
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of their officers, agents, servants, employees, and those acting in active concert or
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participation with them who receive actual notice of this Order are PRELIMINARILY
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ENJOINED and MUST RESTRAIN from directly or indirectly:
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(a)
manufacturing, importing, offering to the public, providing, linking to, or
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otherwise trafficking in (i) pirate software; and (ii) any other device or service used in
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circumventing DISH Network's security system or intercepting DISH Network programming;
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(b)
receiving or assisting others to receive DISH Network's satellite signal
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or other electronic communications originating from DISH Network's system without
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authorization;
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(c)
destroying, hiding, or altering any books or records, whether in hard
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copy or electronic form, regarding satellite television websites or domains, businesses, or
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finances of Defendants, including registration profiles of forum members, Internet Protocol
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logs, discussion threads, invoices, purchase orders, receipts, shipping records, banking or
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investment records, or any documents that identify manufacturers, exporters, importers,
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dealers, purchasers, or website owners and operators of the devices identified in subsection
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(a) above, or persons involved in operating any Internet Key Sharing ("IKS") server or
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receiving control words from same.
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IT IS FURTHER ORDERED that this Order applies to the MFN domains and all other
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domain names used by Defendant, regardless of top-level domain, to traffic in pirate
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software.
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IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and
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their affiliates, and the registries of the MFN domains and their affiliates, including Verisign,
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Inc., and all others who receive notice of this Order, shall not transfer ownership of the MFN
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domains during the pendency of this action, except as directed herein, until further order of
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this Court.
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IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and
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their affiliates, and the registries of the MFN domains and their affiliates, including Verisign,
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Inc., and all others who receive notice of this Order, shall within 24 hours of receipt of this
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Order, change the registrar of record for the MFN domains to a holding account with
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GoDaddy.com, Inc. provided by Plaintiffs at Plaintiffs' expense. Upon such transfer of the
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MFN domains into the holding account, GoDaddy.com, Inc. will lock the MFN domains,
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disable resolution of the MFN domains into any websites, take the MFN domains offline, and
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hold the MFN domains in trust for the Court during the pendency of this action.
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After GoDaddy.com, Inc. has effected this change, Defendants, registrars, registries,
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and all others who receive notice of this Order, are ordered to keep the MFN domains frozen
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and placed on lock status to prevent the MFN domains from being modified, sold, transferred
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to another owner, or deleted, until further order of this Court. This process shall effectively
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seize and impound the MFN domains so that their contents, including the availability of pirate
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software files, are no longer accessible on the Internet, until further order of this Court.
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IT IS FURTHER ORDERED that Plaintiffs and/or GoDaddy.com, Inc. may cancel or
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reverse any redirect of the MFN domains to another domain name caused by Defendants,
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thereby evading the provisions of this Order.
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IT IS FURTHER ORDERED that all website hosting, website optimization, and any
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other company or person that provides website services for the MFN domains, including
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without limitation, CloudFlare, Inc., shall within 24 hours of receipt of this Order, cease all
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website services made in connection with the MFN domains.
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IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and
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their affiliates, and the registries of the MFN domains and their affiliates, including Verisign,
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Inc., website hosting companies, website optimization companies, including without
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limitation, CloudFlare, Inc., and all others who receive notice of this Order, shall preserve and
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not destroy any records, including electronic records and electronically stored information
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relating to: (i) the MFN domains; (ii) the owners and/or operators of the MFN domains; (iii)
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website services relating to the MFN domains; and (iv) the website contents related to the
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MFN domains, and shall take all steps necessary to retrieve electronic records relating to the
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MFN domains that may have been deleted before the entry of this Order;
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IT IS FURTHER ORDERED that DISH Network shall provide electronic notice via
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substituted service via email, by serving a copy of all pleadings and other documents on file
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in this case, including this Order, on Defendants via email to the known email addresses
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associated with Defendants as follows:
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milesforums@hotmail.com;
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complaints@key-systems.net;
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contact@privacyprotect.org;
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compliance@publicdomainregistry.com.
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IT IS FURTHER ORDERED the bond amount shall be set to zero dollars in entering
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this preliminary injunction, and that the $100,000 bond previously submitted by Plaintiffs, is
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hereby released by the Court.
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IT IS FURTHER ORDERED this preliminary injunction shall remain in effect until
further order of the Court.
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Defendants are warned that any act by them in violation of any of the terms of this
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Order after proper notice to them may be considered and prosecuted as contempt of this
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Court.
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IT IS SO ORDERED.
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DATED: February 3, 2012
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BARRY TED MOSKOWITZ, Chief Judge
United States District Court
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