Dish Network, L.L.C. et al v. Irving

Filing 22

ORDER: Plaintiffs' Motion for Default Judgment 21 is GRANTED as provided in the Order. Plaintiffs' request for permanent injunction against Defendant is GRANTED as outlined in the Order. The Clerk is directed to enter judgment on Count II I in favor of Plaintiffs against Defendant Lawrence Irving in the amount of $10,000.00, which is statutory damages. The Clerk is directed to dismiss Counts I and II with prejudice. The Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 11/16/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DISH NETWORK, L.L.C., ET AL.,
Plaintiffs,
v.

Case No. 8:14-cv-2199-T-33MAP

LAWRENCE IRVING,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Plaintiffs
Dish

Network,

L.L.C,

Echostar

Technologies,

L.L.C.,

and

Nagrastar LLC’s Motion for Default Judgment (Doc. # 21), filed
on November 7, 2014. In its memorandum of law, “DISH Network
requests

that

the

Court

grant

default

judgment

against

Defendant on Count III of the complaint alleging violation of
the ECPS, and award DISH Network statutory damages of $10,000
and a permanent injunction.” (Doc. # 21-1 at 14). Provided
that relief is granted, DISH Network agrees to dismiss Counts
I and II with prejudice so that a final judgment may be
entered in this case. (Id.). For the reasons that follow, the
Court grants the Motion.
I.

Background

On

September

4,

2014,

Plaintiffs

filed

this

action

against Defendant Lawrence Irving alleging violations of the
Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq.,
the Federal Communications Act, 47 U.S.C. § 605 et seq., and
the Electronic Communications Privacy Act (ECPA), 18 U.S.C.
§ 2511 et seq. (Doc. # 1).

Lawrence Irving failed to timely

appear and respond in this action. As a result, Plaintiffs
applied for Clerk’s entry of default against Irving on October
7, 2014. (Doc. # 16). On October 8, 2014, the Clerk entered
default against Irving. (Doc. # 18). Thereafter, on November
7, 2014, Plaintiffs filed the present Motion and Memorandum
in Support of Default Judgment as Count III of the Complaint
which alleges violations of the Electronic Communications
Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520. (Doc. # 21).
II.

Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When a

party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s

default.”

A

district

court

may

enter

a

default

judgment against a properly served defendant who fails to
defend or otherwise appear pursuant to Federal Rule of Civil

2

Procedure 55(b)(2). DirecTV, Inc. v. Griffin, 290 F. Supp. 2d
1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment. See
Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a court must
ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id. A default judgment has the
effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.
III. Discussion
Plaintiffs

initiated

this

action

alleging

several

violations of the Digital Millennium Copyright Act, 17 U.S.C.
§ 1201 et seq., the Federal Communications Act, 47 U.S.C. §
605 et seq., and the Electronic Communications Privacy Act,
18 U.S.C. § 2511 et seq. (ECPA). (See Doc. # 1). The present
analysis is limited to the alleged violations of the ECPA or
Wiretap Act, 18 U.S.C. § 2511(1)(a) and § 2520. (See Doc. #
21).

The Wiretap Act creates the following civil remedy:
[A]ny
person
who
intentionally
intercepts,
endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any

3

wire, oral, or electronic communication ... shall
be punished ... or shall be subject to suit. . . .
18 U.S.C. § 2511(1)(a).
For the foregoing reasons, the Court adopts Plaintiffs’
proposed findings as follows:
(1)

DISH NETWORK L.L.C. is a multi-channel video
provider that delivers video, audio, and data
services to approximately 14 million customers
throughout the United States, Puerto Rico, and
the U.S. Virgin Islands via a direct broadcast
satellite system. (Doc. # 1 at ¶ 9).

(2)

DISH NETWORK contracts for and purchases the
distribution
rights
for
most
of
the
programming broadcast on the Dish Network
platform from providers such as network
affiliates, motion picture distributors, pay
and specialty broadcasters, cable networks,
sports
leagues,
and
other
holders
of
programming rights. (Id. at ¶ 11).

(3)

The works broadcast by Dish Network are
copyrighted. Dish Network has the authority of
the copyright holders to protect the works
from unauthorized reception and viewing. (Id.
at ¶ 12).

(4)

Dish
Network
programming
is
digitized,
compressed, and scrambled prior to being
transmitted to multiple satellites located in
geo-synchronous
orbit
above
Earth.
The
satellites relay the encrypted signal back to
Earth where it can be received by Dish Network
subscribers that have the necessary equipment.
(Id. at ¶ 13).

(5)

Echostar
technologies
L.L.C.
provides
receivers, dish antenna, and other digital
equipment for the Dish Network System. Smart
card
and
other
proprietary
security
technologies that form a conditional access

4

system are supplied by NagraStar LLC. The
Echostar Technologies receiver processes an
incoming Dish Network satellite signal by
locating an encrypted part of the transmission
known as the NagraStar entitlement control
message and forwards it to the smart card.
Provided the subscriber is tuned to a channel
he is authorized to watch, the smart car used
its decryption keys to unlock the message,
uncovering a NagraStar control word which is
then transmitted back to the receiver to
decrypt the Dish Network satellite signal.
(Id. at ¶¶ 15-17).
(6)

NFPS is a subscription-based internet key
service (IKS), whereby members purchase a
subscription to the IKS service to obtain the
control words that are used to circumvent the
Dish Network security system and receive Dish
Network’s satellite broadcasts of television
programming without authorization. (Id. at ¶
25).

(7)

Irving violated the Electronic Communications
Privacy Act (ECPA), 18 U.S.C. §§ 2511(1)(a)
and 2520, by utilizing NFPS to decrypt Dish
Network’s satellite signal and view Dish
Network programming without having to purchase
a subscription. (Id. at ¶ 27).

In the Complaint, Plaintiffs assert sufficient facts to
show a plausible claim for relief. Therefore, Irving is liable
to the Plaintiffs under 18 U.S.C. § 2511(1)(a) for which the
Court may award damages under § 2520(c)(2).
IV.

Damages
Plaintiffs seek statutory damages, which are $10,000.

(Doc. # 21-1). A hearing is not required as long as the court
ensures that there is a basis for the damages awarded. See

5

Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v.
ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
With

respect

to

scrambled

or

encrypted

electronic

communications, the ECPA authorizes an award of damages in
the greater of (A) the sum of the actual damages suffered by
the plaintiff and any profits made by the violator as a result
of the violation; or (B) statutory damages of whichever is
the greater of $100 a day for each day of violation or
$10,000. 18 U.S.C. § 2520(c)(2). Below is the current version
of § 2520(c) in full:
(1) In an action under this section, if the conduct
in violation of this chapter is the private viewing
of a private satellite video communication that is
not scrambled or encrypted or if the communication
is a radio communication that is transmitted on
frequencies allocated under subpart D of part 74 of
the rules of the Federal Communications Commission
that is not scrambled or encrypted and the conduct
is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage
or private commercial gain, then the court shall
assess damages as follows:
(A) If the person who engaged in that conduct has
not previously been enjoined under section 2511(5)
and has not been found liable in a prior civil
action under this section, the court shall assess
the greater of the sum of actual damages suffered
by the plaintiff, or statutory damages of not less
than $50 and not more than $500.
(B) If, on one prior occasion, the person who
engaged in that conduct has been enjoined under

6

section 2511(5) or has been found liable in a civil
action under this section, the court shall assess
the greater of the sum of actual damages suffered
by the plaintiff, or statutory damages of not less
than $100 and not more than $1000.
(2) In any other action under this section, the
court may assess as damages whichever is the
greater of—

(A) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as
a result of the violation; or
(B) statutory damages of whichever is the greater
of $100 a day for each day of violation or $10,000.
18 U.S.C. § 2520(c). DIRECTV, Inc. v. Brown, 371 F.3d 814,
816-17 (11th Cir. 2004).
Here, there is a basis for the $10,000 statutory damages
Plaintiffs seek. Plaintiffs allege that Irving engaged in
piracy

violating

the

ECPA

by

purchasing

multiple

subscriptions to the NFPS service and used that service to
intercept Dish Network programming. (Doc. # 21-1 at 6).
Furthermore, Plaintiffs suffered significant harm as a result
of Irving intercepting the Dish Network Programming. (Id. at
7). “Piracy jeopardizes Dish Network’s security system and
requires costly security updates, damages the reputations and
goodwill

of

[Plaintiffs],

which

are

vital

to

their

businesses, and leads to lost programming revenues and lost
profits

that

are

customarily

7

gained

from

the

sale

of

subscription
Network

packages

and

subscribers.”

equipment

(Id.

at

to

8).

authorized

Plaintiffs

Dish
suffer

additional financial loss from the expense of pursuing this
case

because

it

consumes

the

time

of

its

employees

and

requires outside investigators and counsel. (Id.). Plaintiffs
contend that “[a]warding damages will serve the legitimate
purpose of compensating Dish Network for its loss, and in
addition will act as a deterrent for Defendants and others to
not engage in the unauthorized reception of Dish Network
programming.” (Id. at 9).
In this case, the Court finds that the statutory amount
of $10,000.00 is appropriate. Congress wrote § 2520(c)(2) to
give discretion to the Court in determining whether to award
damages, but the plain language of the statute does not,
authorize the Court to grant any amount other than the damages
permitted by the statute. DISH Network L.L.C. v. DelVecchio,
831 F. Supp. 2d 595, 601 (W.D.N.Y. 2011). For the reasons
articulated above, this Court finds an award of $10,000.00 in
statutory damages to be reasonable.
V.

Permanent Injunction
The Court finds that Plaintiffs' request for a permanent

injunction

is

appropriate.

authorizes

courts

to

grant

(See

#

26-1).

The

appropriate

relief

including

8

Doc.

ECPA

preliminary and other equitable or declaratory relief as may
be appropriate. 18 U.S.C. § 2520(b)(2). The criteria for the
issuance

of

a

permanent

injunction

requires

a

plaintiff

demonstrate: “(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that
the public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006).
The

Court

finds

that

based

on

Irving’s

conduct,

Plaintiffs have suffered irreparable injury based on the
piracy of their service. In addition, the damages provided
for

above,

while

significant,

are

inadequate

to

prevent

future piracy without injunctive relief. The only hardship to
Irving from this injunction would be to prevent him from
engaging in further illegal activity, so the balance weighs
in Plaintiffs' favor. The public interest is not disserved by
an injunction as it will protect copyrights and help enforce
federal law. The Court finds the criteria for a permanent
injunction have been met and therefore orders Irving be
permanently enjoined from:

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(1)
circumventing
or
assisting
others
in
circumventing Dish Network’s Security System, or
otherwise intercepting or assisting others in
intercepting Dish Network’s satellite signal, and
(2)
testing,
analyzing,
reverse
engineering,
manipulating, or otherwise extracting codes, data,
or information from Dish Network’s satellite
receivers, smart cards, satellite data stream, or
any other part or component of the Dish Network
security System.
(Doc. # 21-1 at 14). See DISH Network L.L.C. v. DelVecchio,
831 F. Supp. 2d 595, 601-02 (W.D.N.Y. 2011).
Based upon the Clerk’s entry of default, the well-pled
factual allegations in the Complaint, and the Motion itself,
the Court determines that Plaintiffs’ allegations support a
finding that Lawrence Irving violated 15 U.S.C. § 2511(1)(a).
As such, Plaintiffs’ Motion is due to be granted and a hearing
on this matter is not needed. Upon due consideration, the
Court

finds

the

statutory

damages

and

injunctive

relief

sought in this case to be reasonable.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiffs’ Motion for Default Judgment (Doc. # 21) is
GRANTED as provided herein.

(2)

Plaintiffs’ request for permanent injunction against
Defendant is GRANTED as outlined above.

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(3)

The Clerk is directed to enter judgment on Count III in
favor of Plaintiffs against Defendant Lawrence Irving in
the amount of $10,000.00, which is statutory damages.

(4)

The Clerk is directed to dismiss Counts I and II with
prejudice.

(5)

The Clerk is directed to CLOSE THIS CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this

16th day of November, 2014.

Copies to: All counsel and parties of record

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