Dish Network L.L.C. v. TV Net Solutions, LLC et al

Filing 78

ORDER directing public filing re 73 Motion for Default Judgment. Signed by Magistrate Judge Thomas B. Smith on 9/10/2014. (SMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DISH NETWORK L.L.C.,
Plaintiff,
v.

Case No: 6:12-cv-1629-Orl-41TBS

TV NET SOLUTIONS, LLC, MOHAMMAD
MUSTAFA, GLOBAL SATELLIT IP TV
SCANDINAVIAN AB and BASEM
HALABI,
Defendants.
ORDER
This matter comes before the Court Plaintiff’s Motion for Default Judgment and a
Permanent Injunction against Defendants Global Sattelit IP TV Scandinavian AB and
Basem Halabi. (Doc. 73). Plaintiff attached a number of exhibits to the motion,
including heavily redacted license agreements with foreign-language networks. (Docs.
73-2, 73-3). On August 25, 2014, the Court directed Plaintiff to submit the agreements
and all relevant amendments in full, either in camera or in a public filing. On September
3, Plaintiff complied with the Court’s order by submitting the agreements and all
amendments and renewal letters in camera. In the letter accompanying that submission,
Plaintiff indicated that it was “in the process of negotiating renewals for certain of these
television channels.” Now, the Court directs Plaintiff to file on the public docket redacted
copies of these license agreements disclosing more information than is revealed in the
exhibits to their motion for default judgment. The Court will also afford Plaintiff the
opportunity file any renewals it has negotiated.

The public enjoys a qualified common-law right of access to judicial proceedings.
See generally Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th
Cir. 2001). The right applies to all material submitted “in connection with a substantive
motion,” and it requires the Court to balance the interest of the parties in keeping the
information confidential with the interest of the public in making it available. Id. at 1312–
13. “The common law right of access may be overcome by a showing of good cause,
which requires ‘balancing the asserted right of access against the other party’s interest in
keeping the information confidential.’” Romero v. Drummond Co., 480 F.3d 1234, 1245
(11th Cir. 2007) (quoting Chicago Tribune, 263 F.3d at 1313). In balancing these
interests “courts consider, among other factors, whether allowing access would impair
court functions or harm legitimate privacy interests, the degree of and likelihood of injury if
made public, the reliability of the information, whether there will be an opportunity to
respond to the information, whether the information concerns public officials or public
concerns, and the availability of a less onerous alternative to sealing the documents.” Id.
at 1246. Good cause is established by showing that disclosure will cause “a clearly
defined and serious injury.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.
1994). See also Kamakana v. City and County of Honlulu, 447 F.3d 1172, 1181 (9th Cir.
2006) (party seeking to seal dispositive motion papers “must ‘articulate[] compelling
reasons supported by specific factual findings.’” (quoting Foltz v. State Farm Mut. Auto.
Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (alterations in original))).
Redacting parts of a document, like sealing a document in its entirety, infringes on
the public’s right of access. Redaction, however, can be a far less drastic alternative to
sealing and, in many cases, is a solution that substantially honors both the parties’
interest in secrecy and the public’s interest in access. This is such a case. The license

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agreements Plaintiff submitted in conjunction with its motion for default judgment provide
essential evidence of Plaintiff’s entitlement to relief. The Copyright Act requires that all
assignments of copyright be in writing, 17 U.S.C. § 204, and the license agreements
satisfy this writing requirement. They also define the scope, geographical, temporal, and
otherwise, of Plaintiff’s copyright. Withholding information relevant to the scope of the
assignment would deny the public its right to access the information on which this Court
bases its judgments. The nature of the right Plaintiff asserts—a right to exclude anyone
from making certain uses of the works at issue—and the nature of the relief it seeks—an
injunction—further heighten the public’s interest in disclosure. That said, the agreements
also contain confidential information, including information relating to pricing, having no
relevance to any of the issues in this case. Disclosing this information would harm
Plaintiff and the licensors without accomplishing any public good.
The exhibits Plaintiff filed in connection with its motion are too heavily redacted to
honor the public right of access. Definitions of important terms, including the term
“Territory,” are redacted. The redacted exhibits leave the reader guessing as to the
temporal and geographical scope of the assignments—for all a member of the public
knows, the agreements confer the right to broadcast the channels in Canada and expired
four years ago. These omissions render the redacted exhibits incapable of proving
anything significant.
In fact, the Court’s review of Plaintiff’s in camera submissions show that several of
these agreements—in particular, those concerning Al Arabiya, IQRAA, and Noursat, have
expired (although they were still in force when Plaintiff filed its motion). In addition, the
Dream 2 agreement is set to expire by the end of this month. If Plaintiff no longer owns

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any copyright for works currently airing on a channel, it is not entitled to an injunction
barring Defendants from distributing or publicly performing those works.
Accordingly, it is hereby ORDERED that, within 21 days of the date of this order,
Plaintiff shall file a redacted copy of each agreement, disclosing the following information:
1. The preamble of the agreement;
2. From Part A of each agreement:
a. the identity of the parties, including any definition of a party (such as
“Network” or “Distributor”);
b. the effective date of the agreement and the term of the agreement;
c. the geographical scope of the agreement, including any definition of
“Territory”; and
d. any provision entitled “Exclusivity Limitations”;
3. Part B of each agreement, entitled “Service Description”;
4. The signature page or pages; and
5. From the standard terms and conditions attached to each agreement:
a. any definition of “Service”; and
b. paragraph 2, entitled “Grant of Rights.”
In addition, Plaintiff shall file any document it contends operates to renew the
original agreement, as well as any amendment that affects any of the provisions identified
above. Plaintiff may redact from these documents any information bearing on terms of
the agreement other than those noted above. Finally, Plaintiff may redact parts of the
terms the Court has ordered it to disclose upon showing, to the Court’s satisfaction, that
disclosure will cause a clearly defined and serious injury.

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DONE and ORDERED in Orlando, Florida on September 10, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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