Dish Network L.L.C. et al v. Lamaack

Filing 51

ORDER GRANTING PLAINTIFFS' MOTION FOR COURT'S ENTRY OF DEFAULT JUDGMENT, PERMANENT INJUNCTION, AND IMPOUNDMENT. 1. Lamaack, and any of his employees, agents, representatives, attorneys, and all persons acting or claiming to act on his behal f or under his direction or authority, and all persons acting in concert or in participating with him who receive actual notice of this Order are PERMANENTLY ENJOINED and MUST RESTRAIN from directly or indirectly: (See Order for additional details.)(Written Opinion). Signed by Judge Donovan W. Frank on 6/4/2013. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

DISH Network L.L.C.;
EchoStar Technologies L.L.C.;
and NagraStar LLC,

Civil No. 12-2416 (DWF/FLN)

Plaintiffs,

ORDER GRANTING PLAINTIFFS’
MOTION FOR COURT’S ENTRY OF
DEFAULT JUDGMENT, PERMANENT
INJUNCTION, AND IMPOUNDMENT

v.
Joshua Alan Lamaack, a/k/a
RAZOR420 and RAZOR,
Defendant.

I.

NATURE OF THE CASE
1.

Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and

NagraStar LLC (collectively, “DISH Network”) brought this action against Defendant
Joshua Alan Lamaack a/k/a RAZOR420 and RAZOR (“Lamaack”) for offering, selling,
distributing, or otherwise trafficking in IKS server passcodes that are primarily designed
and used for stealing DISH Network’s copyright protected, subscription-based
programming.
2.

On October 3, 2012, Lamaack was properly served with a copy of the

summons and DISH Network’s Original Complaint, (Doc. No. 7), but failed to file an
answer, responsive pleading, or otherwise defend the lawsuit within the time allowed.
DISH Network submitted evidence that Lamaack is not an infant, incompetent, or on
active duty in the military or otherwise exempted under the Service members Civil Relief

Act and requested the Clerk to enter default judgment against Lamaack. (See Doc.
Nos. 18, 19.)
3.

On October 29, 2012, the Clerk entered default against Lamaack. (See Doc.

No. 22.)
4.

On March 6, 2013, DISH Network moved for default judgment, statutory

damages, permanent injunction, impoundment, and entry of a final judgment against
Lamaack based on his violations of the Digital Millennium Copyright Act (“DMCA”),
17 U.S.C. § 1201(a)(2), and Communications Act, 47 U.S.C. § 605(e)(4). (See Doc.
No. 35.)
5.

As a result of Lamaack’s failure to answer, or otherwise appear in this

action and the Clerk’s entry of default, the Court accepts as true the following
well-pleaded allegations in DISH Network’s Original Complaint, (Doc. No. 1):
a.

DISH Network L.L.C. is a multi-channel video provider that

delivers video, audio, and data services to customers throughout the
United States, Puerto Rico, and the U.S. Virgin Islands via a direct
broadcast satellite system. DISH Network uses high-powered satellites to
broadcast, among other things, movies, sports, and general entertainment
services to consumers who have been authorized to receive such services
after payment of a subscription fee, or in the case of a pay-per-view movie
or event the purchase price. (Doc. No. 1, ¶¶ 9-10.)

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b.

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, pay and specialty
broadcasters, cable networks, motion picture distributors, sports leagues,
and holders of programming rights. The works broadcast by DISH
Network are copyrighted. DISH Network has the authority to protect these
works from unauthorized reception and viewing. (Id. at ¶¶ 11-12.)
c.

DISH Network programming is digitized, compressed, and

scrambled prior to being transmitted to multiple satellites located in geosynchronous orbit above Earth. The satellites, which have relatively fixed
footprints covering the United States and parts of Canada, Mexico, and the
Caribbean, relay the encrypted signal back to Earth where it can be received
by DISH Network subscribers that have the necessary equipment. ( Id. at
¶ 13.)
d.

An EchoStar Technologies receiver processes an incoming

DISH Network satellite signal by locating an encrypted part of the
transmission known as the entitlement control message and forwards that
message to the NagraStar smart card. Provided that the subscriber is tuned
to a channel he is authorized to watch, the smart card uses its decryption
keys to unlock the message, uncovering a control word. The control word

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is transmitted back to the receiver in order to decrypt the DISH Network
satellite signal. (Id. at ¶ 17.)
e.

The EchoStar Technologies receiver and NagraStar smart

card convert DISH Network’s encrypted satellite signal into viewable
programming that can be displayed on the attached television of a DISH
Network subscriber. (Id. at ¶ 18.)
f.

Lamaack was and is engaged in offering to the public or

otherwise trafficking in IKS server passcodes in violation of 17 U.S.C.
§ 1201(a)(2). (Id. at ¶ 34.) Lamaack’s IKS server passcodes are primarily
designed and produced for the purpose of circumventing the DISH Network
security system; have no commercially significant purpose or use other than
to circumvent the DISH Network security system; and are marketed by
Lamaack for use in circumventing the DISH Network security system. (Id.
at ¶ 35.) Lamaack’s actions were and are performed without the
permission, authorization, or consent of DISH Network or any owner of
copyrighted programming broadcast on the DISH Network platform. (Id. at
¶ 36.) The DISH Network security system is a technological measure that
effectively controls access to copying and distribution of copyrighted
works. (Id.) Lamaack violated 17 U.S.C. § 1201(a)(2) willfully and for
purposes of commercial advantage and private financial gain. (Id. at ¶ 37.)

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Unless restrained and enjoined by the Court, Lamaack will continue to
violate 17 U.S.C. § 1201(a)(2). (Id. at ¶ 38.)
g.

Lamaack was and is engaged in the business of selling or

otherwise distributing IKS server passcodes in violation of 47 U.S.C.
§ 605(e)(4). (Id. at ¶ 40.) Lamaack’s passcodes are primarily of assistance
in the unauthorized decryption of DISH Network’s satellite transmissions of
television programming. (Id. at ¶ 41.) Lamaack intended for his IKS server
passcodes to be used in the unauthorized decryption of DISH Network’s
satellite transmissions of television programming, or knew or should have
known the passcodes were and are primarily used for this purpose, and
therefore are illegal and prohibited. (Id. at ¶ 43.) Such violations have and
will continue to cause damage to DISH Network, and unless restrained and
enjoined by the Court, Lamaack will continue to violate 47 U.S.C.
§ 605(e)(4). (Id.) Lamaack violated 47 U.S.C. § 605(e)(4) willfully and for
purposes of commercial advantage and private financial gain. (Id. at ¶ 42.)
6.

DISH Network submitted evidence from PayPal Inc. that showed Lamaack

sold at least 35 passcodes to the RazorTV IKS server and accepted payment using the
PayPal e-mail address [e-mail]. (See Declaration of Jerry Gee, ¶¶ 4-6,
Ex. 1); (see also Declaration of Joseph Boyle, ¶ 9, Ex. 3.)

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7.

In accordance with Fed. R. Civ. P. 55(b)(2), DISH Network requests entry

of a default judgment on Counts I and II for Lamaack’s violations of the DMCA,
17 U.S.C. § 1201(a)(2), and Communications Act, 47 U.S.C. § 605(e)(4).
8.

In accordance with the Communications Act, 47 U.S.C.

§ 605(e)(3)(C)(i)(II), DISH Network requests an award of statutory damages in the
amount of $350,000, a sum certain, for Lamaack’s distribution of 35 IKS server
passcodes in violation of the Communications Act, 47 U.S.C. § 605(e)(4).
9.

In accordance with the DCMA, 17 U.S.C. §§ 1203(b)(1), (2), DISH

Network requests a permanent injunction and order for the seizure and impoundment of
Lamaack’s IKS server passcodes for his violations of the DMCA, 17 U.S.C. § 1201(a)(2).
10.

Provided that all the requested relief is fully granted, DISH Network agrees

to dismiss Counts III through V against Lamaack with prejudice so that a final judgment
may be entered in this case.
II.

PERMANENT INJUNCTION AGAINST LAMAACK
Upon Lamaack’s default, the Court, having reviewed the record, evidence, and

applicable law in this matter, enters a permanent injunction against Lamaack and
ORDERS as follows:
1.

Lamaack, and any of his employees, agents, representatives, attorneys, and

all persons acting or claiming to act on his behalf or under his direction or authority, and
all persons acting in concert or in participating with him who receive actual notice of this

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Order are PERMANENTLY ENJOINED and MUST RESTRAIN from directly or
indirectly:
a.

managing, directing, controlling, or otherwise operating any

IKS server, including but not limited to the RazorTV IKS server;
b.

manufacturing, importing, offering to the public, providing or

otherwise trafficking in (i) IKS server passcodes, or any other code,
password, or information used in accessing an IKS server, or otherwise
providing access to an IKS server in any way, including but not limited to
the RazorTV IKS server, and (ii) any other technology, component, or part
thereof that is primarily of assistance in the unauthorized decryption of
direct-to-home satellite services or used in circumventing DISH Network’s
security system; and
c.

receiving or assisting others to receive DISH Network’s

satellite signal or other electronic communications originating from DISH
Network’s system without authorization.
2.

This permanent injunction is authorized under the DMCA, 17 U.S.C.

§ 1201(b)(1) and Fed. R. Civ. P. 65 and takes effect immediately.
III.

FINAL JUDGMENT AND ORDER FOR SEIZURE AND IMPOUNDMENT
1.

The Court ORDERS a final judgment in favor of Plaintiffs DISH Network

L.L.C., EchoStar Technologies L.L.C., and NagraStar LLC on Counts I and II of

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Plaintiffs’ Original Complaint for violations of 17 U.S.C. § 1201(a)(2) and 47 U.S.C.
§ 605(e)(4) against Defendant Joshua Alan Lamaack a/k/a RAZOR420 and RAZOR.
2.

The Court awards Plaintiffs statutory damages against Lamaack in the

amount of $350,000 based on his 35 violations of the Communications Act, 47 U.S.C.
§ 605(e)(4) at $10,000 per violation as authorized by 47 U.S.C. § 605(e)(3)(C)(i)(II).
3.

Pursuant to 17 U.S.C. § 1203(b)(2), the Court FURTHER ORDERS that,

within 10 court days of service of this Order on Lamaack, Lamaack shall send by Federal
Express or UPS to counsel for DISH Network, Joseph Boyle, Hagan Noll & Boyle LLC,
820 Gessner, Suite 940, Houston, Texas 77024, the following items for seizure and
impoundment:
a.

all passcodes that may be used to access any IKS server along

with the electronic media, including but not limited to CD-Roms, disks, and
USB storage devices, on which the passcodes reside; and
b.

an inventory sheet identifying each item being delivered to

counsel for DISH Network for impoundment.
4.

Counts III through V of Plaintiffs’ Original Complaint against Lamaack are

DISMISSED WITH PREJUDICE so that a final judgment can be entered.
5.

The Court retains jurisdiction over this action for the purpose of enforcing

the judgment and permanent injunction against Lamaack.
6.

This is a final judgment. Any relief not expressly granted herein, is denied.

7.

Each party is to bear its own fees and costs.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 4, 2013

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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