Dish Network L.L.C. et al v. Garcia-Alejandri et al

Filing 94

OPINION AND ORDER - granted in part and denied in part re 77 MOTION for Summary Judgment filed by Dish Network L.L.C. Signed by US Magistrate Judge Camille L. Velez-Rive on 7/30/12.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DISH Network, L.L.C., a Colorado
Limited DISH Network L.L.C., a Colorado
Limited Liability Company,
ECHOSTAR TECHNOLOGIES L.L.C.,
a Texas limited Liability Company, and
NAGRASTAR L.L.C., a Colorado
Limited Liability Company,
Plaintiffs,
v.

CIVIL NO. 10-2064 (CVR)

Ashley García Alejandri, a/k/a Ashley
Garcia Alejandrino, a/k/a Ashley Garcia,
d/b/a Coki One Tech & Electronics, d/b/a
www.cokione.com and Joel Cotto Soto,
a/k/a Joel Coto, d/b/a FTA del Sur,
d/b/a www.ftadelsur.com, d/b/a ALFA
Technology Store and d/b/a ALFA
Network and John and Jane Does 1-10,
Defendants.
OPINION AND ORDER
INTRODUCTION
Plaintiffs Dish Network, L.L.C., Echostar Technologies L.L.C., and Nagrastar L.L.C.
(referred hereafter collectively as “plaintiffs”) filed a complaint against defendant Ashley
García Alejandri, a/k/a Ashley García Alejandrino, a/k/a Ashley García, d/b/a Coki One
Tech & Electronics, d/b/a www.cokione.com (referred hereafter as defendant “García
Alejandri”) in relation to the sale and distribution of equipment to enable unauthorized use
of plaintiff Dish Network’s satellite television signals, as well as defendant’s own use of
unauthorized interception of plaintiffs’ signals in their store to demonstrate to their
customers their piracy capabilities. The Complaint against defendant raises causes of action

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for the following: trafficking in pirate devices in violation of the Digital Millennium
Copyright Act, 17 U.S.C. §1201(a)(2); facilitating the unauthorized reception of satellite
signals in violation of the Communications Act of 1934, 47 U.S.C. §605(a), as amended;
modification and sale of pirate devices under previous statute at §605(e)(4); circumvention
of Copyright Protection System, 17 U.S.C. §1201(a)(1)(A); and unauthorized interception
of electronic communication a violation of 18 U.S.C. §2511(1). (Docket No. 2).
Plaintiffs filed a Motion for Summary Judgment, with the corresponding
memorandum of law and supporting statements, including Exhibit A, the deposition
testimony of defendant Ashley García Alejandri, and Exhibits B-E, statements of Kevin
Gedeon, Jerry Lee Gee, Edwin Hernández and John McLaughlin. (Docket No. 77).
Defendant García Alejandri submitted a Motion in Opposition to Summary Judgment,
without any supporting documentation and/or reference to plaintiffs’ uncontested facts or
a submission of defendant’s own statement of uncontested facts. Said opposition was
mostly based on counsel’s statements in regards to the legality of the devices at issue from
the claim made by counsel these are also available for sale from other sources, including
internet sites. (Docket No. 89).1
Plaintiffs then filed a reply brief to defendant García Alejandri’s Opposition
addressing defendant’s failure to comply with the Federal Rules of Civil Procedure, as well

1

The remaining defendant has not presented an opposition to plaintiffs’ request for summary adjudication since
all claims against co-defendant Joel Cotto Soto a/k/a Joel Coto, d/b/a FTA del Sur, d/b/a www.ftadelsur.com, d/b/a ALFA
Technology Store and d/b/a ALFA Network were already dismissed with prejudice. (Docket No. 70). Partial Judgment
as to said defendant was already entered. (Docket No. 75).

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as with applicable local rules, when filing his opposition to the motion for summary
judgment and requesting plaintiffs’ uncontested facts be admitted. (Docket No. 90-1).
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(c).2
Pursuant to the language of the applicable rule, as amended in 2010, the moving
party bears the two-fold burden of showing that there is “no genuinely disputed” factual
predicate. Said party may also show that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” See Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178
(1st Cir. 1997). After the moving party has satisfied this burden, the onus shifts to the
resisting party to show that there still exists “a trial worthy issue as to some material fact.”
Cortés-Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed
“material” if it potentially could affect the outcome of the suit. Id. Moreover, there will only
be a “genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable fact-

2

On April 28, 2010, the Supreme Court of the United States approved amendments to Federal Rule of Civil
Procedure 56, effective December 1, 2010. The standard for granting summary judgment remains unchanged. The
language of subdivision (a) continues to require that there be no genuine dispute as to any material fact and that the
movant be entitled to judgment as a matter of law. The amendments will not affect continuing development of the
decisional law construing and applying these phrases. See Ophthalmic Surgeons, Ltd. v. Paychecx, Inc., 632 F.3d 31 (1st
Cir. 2011).

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finder, examining the evidence and drawing all reasonable inferences helpful to the party
resisting summary judgment, could resolve the dispute in that party’s favor.” Id.
At all times during consideration of a motion for summary judgment, Court must
examine the entire record “in the light most flattering to the non-movant and indulge all
reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994). There is “no room for credibility determinations, no room for
the measured weighing of conflicting evidence such as the trial process entails, [and] no
room for the judge to superimpose his own ideas of probability and likelihood . . . .”
Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). In fact,
“[o]nly if the record, viewed in [this] manner and without regard to credibility
determinations, reveals no genuine issue as to any material fact may the court enter
summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).
The moving party's uncontested facts and other evidentiary facts of record on an
uncontested motion for summary judgment must still show that said party would be
entitled to summary judgment. See Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir.
2003). As such, when a motion for summary judgment remains unopposed, the district
court may grant summary judgment, if appropriate, for failure to oppose does not mean the
summary judgment requested will be automatically granted. Said request for summary
judgment even if unopposed must be scrutinized in accordance with rule governing such
motions. See Pérez-Cordero v. Wal-Mart Puerto Rico, 440 F.3d 531 (1st Cir. 2006).

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UNCONTESTED ISSUES OF FACTS
Defendant García Alejandri in his opposition did not address plaintiffs’ uncontested
facts nor did he submit his own uncontested facts. Still more, defendant García Alejandri
did not comply with Local Rule insofar as providing a separate statement of facts nor any
reference to specific citation to the record. The Local Rules require that:
(c) Opposing Statement of Material Facts.
A party opposing a motion for summary judgment shall submit with its
opposition a separate, short, and concise statement of material facts. The
opposing party shall admit, deny or qualify the facts supporting the motion
for summary judgment by reference to each numbered paragraph of the
moving party’s statement of material facts. Unless a fact is admitted, the
opposing statement shall support each denial or qualification by a record
citation as required by this rule. The opposing statement may contain in a
separate section additional facts, set forth in separate numbered paragraphs
and supported by a record citation as required by subsection (e) of this rule.
Local Rule 56(c).
(e) Statement of Facts Deemed Admitted Unless Proper Controverted;
Specific Record of Citation Required.
Facts contained in a supporting or opposing statement of material facts, if
supported by record citations as required by this rule, shall be deemed
admitted unless properly controverted. An assertion of fact set forth in a
statement of material facts shall be followed by a citation to the specific page
or paragraph of identified record material supporting the assertion. The
court may disregard any statement of fact not supported by a specific citation
to record material properly considered on summary judgment. The court
shall have no independent duty to search or consider any part of the record
not specifically referenced in the parties’ separate statement of facts.
Local Rule 56(e).
The application of a local rule which requires a timely opposition --or when no
significant opposition at all to a motion is submitted-- is reviewed for abuse of discretion.
The Court of Appeals for the First Circuit has given a special degree of deference to a court’s

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interpretation of its own rules. Cabán Hernández v. Phillip Morris USA, Inc., 486 F.3d 1,
17 (1st Cir. 2007); see Cordero-Soto v. Island Fin., Inc., 418 F.3d 114, 118 (1st Cir. 2005);
Vélez v. Awning Windows, Inc., 375 F.3d 35, 41-42 (1st Cir. 2004); United Parcel Serv., Inc.
v. Flores-Galarza, 318 F.3d 323, 330 & n. 10 (1st Cir. 2003); Corrada Betances v. Sea-Land
Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001); Morales v. A.C. Orssleff's EFTF, 246 F.3d 32,
33-34 (1st Cir. 2001); Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000).
Upon lack of any controverted facts as presented by plaintiffs to resolve the issues
raised in the motion for summary judgment, the facts below are considered uncontested.
It is uncontested that plaintiff Dish Network operates a satellite distribution system
with legitimate hardware and encryption technology components of above other plaintiffs
having the distribution rights for copyrighted programming from content providers. These
encrypted signals are then delivered through satellite to legitimate subscribers who have
paid for the right to view said signals. These signals are interstate satellite signals
predominantly containing work that is protected by copyright and not intended for the
general public. Plaintiff uses smart cards for its decryption system. Pirates to this system
have been able to create a work around, that is referred as a card-hack of certain former
encryption system named Nagra 2 used by plaintiff up to June 2009. Through this cardhack pirates have created various devices and technologies to allow individuals to decrypt
the Dish Network’s signals without authorization. The pirates’ created software, modified
Nagra 2 card hack piracy software, to allow card-hack technology to be programmed onto
Free To Air (referred hereafter as “FTA”) satellite receivers which receivers were originally
designed to receive signals that were not encrypted. Once these FTA receivers are

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programmed with the card-hack software, it may decrypt Dish Network’s signals without
authorization. (Docket No. 77, plaintiff’s Exhibit C, statement Mr. Jerry Lee Gee, ¶¶ 5, 25,
34-36 and 73).
In June of 2009, plaintiff switched to a new encryption system, referred by pirates
as Nagra 3, which does not appear to have been reverse engineered and thus after June
2009 the card-hack piracy seemed to come to an end. (Id., ¶37).
In 2007, pirates developed a new method to obtain Dish Network’s signals without
authorization, the Internet Key Sharing (referred hereafter as “IKS”), which is not based
upon the card-hack, but uses internet-enabled FTA receivers which are capable of
connecting to the internet. (Id., ¶50). Once the piracy software, Modified FTA/IKS piracy
software, is loaded to internet-enabled FTA receivers, the internet connection permits the
sharing of control words through IKS. FTA receiver contacts a specific computer server
over the internet, IKS Server, which provides the control words necessary to descramble
various channels of Dish Network’s programming. The control words are received by the
internet-enabled FTA receivers used by end-users to descramble Dish Network’s
programming without authorization or payment to Dish Network. (Id., ¶53).
Through defendant García Alejandri’s admissions, both in his deposition testimony
and the answers to plaintiff’s request for admissions, it has been established as uncontested
that defendant García Alejandri operates a retail store business located at 435A Andalucía
Avenue, Puerto Nuevo, Puerto Rico and has used the name Coki One Tech & Electronics.
Said defendant admits to have sold satellite receivers and satellite hardware at the store and
through its website www.cokione.com. (Docket No. 77, plaintiff’s Exhibit A).

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Installers offering services to purchasers at García Alejandri’s stores of satellite
receivers and satellite hardware were made available at said store, identified as Coki One,
for some left their calling cards for prospective clients. Defendant admitted to have sold
satellite receivers knowing that most FTA receivers and, essentially, all the internet-enabled
receivers, would be ultimately used for Dish Network piracy. (Docket No. 77, plaintiff’s
Exhibit A; Exhibit D, Edwin Hernández’ statement ¶¶ 26, 34).
On October 21, 2008, an undercover investigator for plaintiff, Edwin L. Hernández
(referred hereafter as “Hernández”), visited defendant’s Coki One store an engaged in
conversation with defendant García Alejandri who stated words to the effect that it was
illegal to program the FTA traditional receivers to obtain Dish Network’s programming so
they would not do so at the site but had a technician who could program the receiver off-site
for Hernández. (Docket No. 77, plaintiff’s Exhibit D,¶¶16-17). The following day Hernández
visited again the store Coki One and García Alejandri stated that he could get him an FTA
receiver and programming, but the programming had to be done outside of the store.
García Alejandri provided the names of several technicians to Hernández who could
program the receiver, including one Elías Rivera (referred hereafter as “Rivera”). While still
at the store, Hernández contacted Rivera and was told that he could program the receiver,
to buy same, and wait for him at the Coki One store. Hernández bought the Captiveworks
CW800 traditional FTA satellite receiver for $126.26 from defendant García Alejandri. (Id.,
¶¶21-26). Rivera arrived to the Coki One store and made arrangements with Hernández to

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meet at another location where Hernández would pick up the programmed receiver.3 The
next day both Hernández and Rivera met and the latter was paid $30 for the programming.
An examination of the receiver retrieved from Rivera showed it had been modified with
particular Nagra 2 card hack piracy software, which could receive, without authorization,
Dish Network’s programming through June of 2009. (Docket No. 77, plaintiff’s Exhibits
D, ¶¶27-30; Exhibit C, Gee’s statement ¶70).
On July 14, 2010, Hernández went again to the Coki One store and was
recommended by defendant García Alejandri to purchase an internet-enabled FTA receiver,
the Nfusion Phoenix FTA satellite receiver. Hernández asked about the programming to
enable the receiver to obtain Dish Network’s signal and was recommended three
technicians, as to whom defendant provided their business cards, among them one Aníbal
Hernández, and was informed he was the one closer who should be used for the quickest
programming. (Docket No. 77, plaintiff’s Exhibit D, ¶¶33-37). Hernández arranged for
Aníbal Hernández to come to the store and followed him to a residential address where he
observed the receiver being then attached to a computer to be programmed.4 Hernández
paid Aníbal Hernández $40.00 for the programming services. An examination thereafter
determined the internet-enabled FTA receiver had been modified with particular FTA/IKS
piracy software files used to create an unauthorized Dish Network’s decryption device that

3

Plaintiff’s investigator Kevin Gedeon participated together with Hernández in following Rivera to a residential
address. (Docket No. 77, plaintiff’s Exhibit B).
4

Once more, Mr. Gedeon, plaintiff’s investigator, followed Hernández to the residence. Although the
uncontested facts refer this time to García also following, it seems to be a typo as to the name for the accompanying
statement refers instead to Hernández, not to García as the participant who followed together with Gedeon to Hernández’
residence.

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would use the IKS technology which is still a viable form of Dish Network’s piracy. (Docket
No. 77, plaintiff’s Exhibit D, ¶¶37, 41-43; Exhibit C, ¶73).
On the basis of García Alejandri’s two above described transactions in the selling and
distribution of Dish Network’s piracy devices, which were done willfully and for financial
gain or commercial advantage, plaintiffs’ estimate as to financial loss based on their
investigation and litigation is of approximately $294.93 per month in subscription and pay
per view for each piracy device in use, with an annual loss of $3,539.20 as to each device.
(Docket No. 77, plaintiff’s Exhibit C, ¶77).
As to these uncontested facts presented by plaintiffs, defendant García Alejandri
submitted his opposition which, based on his counsel’s averments, without more, refers to
the selling of these FTA receivers as not being illegal per se for these were designed to
receive Free-To-Air satellite television signals and are available through numerous other
stores in Puerto Rico and through web sites. Counsel for defendant further argues in the
opposition that García Alejandri denies having ever oriented any of the former clients as to
ways to pirate Dish Network’s signals. Clearly, these averments by counsel are insufficient
to defeat plaintiffs’ uncontested facts, regardless of also not being in compliance with the
relevant rules.
LEGAL ANALYSIS
A.

Communication Act’s Violations.
Section 605(a) of the Communication Act provides that “[n]o person not being

entitled thereto shall receive or assist in receiving any interstate or foreign communication
by wire or radio and use such communication (or any information therein contained) for

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his own benefit or for the benefit of another not entitled thereto.” 47 U.S.C. § 605 (a).
(Emphasis supplied).
In Charter Communications Entertainment I, DST v. Burdulis, 460 F.3d 168 (1st Cir.
2006), the Court of Appeals for the First Circuit resolved the controversy among the district
courts sitting in the First Circuit, concluding that section 605 (a) was intended to apply only
to the interception of radio and does not apply to the theft of cable services. Charter, 460
F.3d at 173. As such, the reference to Section 605 (a) in the Complaint does not apply to the
situation in the case at bar where it is uncontested that the acts alleged by plaintiffs as
committed by defendant relate to satellite signals transmitted over a cable network, for
which it may not prevail in its claim under section 605 (a).5
Therefore, plaintiff Dish Network is not entitled to summary judgment in regards to
its claims under Section 605(a).6

5

To this effect, Charter clarifies that “regarding the statutory text itself, the district court correctly points out
that § 605 is noteworthy for its general exclusion of communications by wire or cable... § 605 does make reference to
communications by wire or cable in a few, very limited instances. The vast majority of § 605 is devoted to communications
by radio. Moreover, Congress clearly understood the difference between ‘communication by radio’ and ‘communication
by wire,’ as it defined separately the two methods of communication. See, e.g., 47 U.S.C. § 153(33) (defining
‘communication by radio’); id. § 153(52) (defining ‘communication by wire’). We presume that had Congress meant for
‘communication by wire’ to be a pivotal part of the § 605 regulatory regime, it would have stated as much. ‘[I]t is a general
principle of statutory construction that when Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’ Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908
(2002) (internal quotation marks and citations omitted). The fact that § 605 deals almost exclusively with ‘communication
by radio’ speaks volumes, and we think there was no need for Congress to make specific reference to its general desire to
exclude ‘communication[s] by wire’ from the § 605 regulatory framework.” Charter, 460 F.3d at 172-73.
6

See Eric C. Surette, J.D., Applicability of 47 U.S.C.A. § 605, Prohibiting Unauthorized Interception of Radio
Communications, To Sale and Use of Cable Decoding Equipment, 195 A.L.R. Fed. 565 (2004). Section 605 of Title 47 of
the United States Code prohibits the unauthorized interception of radio communications. The question has arisen whether
this provision is applicable to the sale and use of cable decoding equipment. Courts held that the use of an unauthorized
cable television descrambler did not violate § 605 for it is reasoned that once a satellite transmission reaches a cable
system's wire distribution network, the only applicable statute is § 553, so the two statutes are mutually exclusive.

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However, plaintiff Dish Network has also raised defendant has violated Section
605(e)(4) of the Communication Act which proscribes the sale and/or distribution of
satellite piracy devices, which provides:
Any person who manufactures, assembles, modifies, imports, exports, sells,
or distributes any electronic, mechanical, or other device or equipment,
knowing or having reason to know that the device or equipment is primarily
of assistance in the unauthorized decryption of satellite cable programming,
or direct-to-home satellite services, or is intended for any other activity
prohibited by subsection (a) of this section, shall be fined not more than
$500,000 for each violation, or imprisoned for not more than 5 years for each
violation, or both. For purposes of all penalties and remedies established for
violations of this paragraph, the prohibited activity established herein as it
applies to each such device shall be deemed a separate violation.
This provision has been considered to extend civil standing such that a person
aggrieved under the first part of the definition would also have standing to bring a claim
based on the second part of the definition. That is, merely by virtue of having proprietary
rights in a specific intercepted communication, under § 605(a), a plaintiff would also have
standing to sue any person who manufactured, exported, modified, or decrypted equipment
in violation of Section 605 (e)(4) that was designed and used to unlawfully decrypt the
plaintiff's communications.7 The House Report accompanying the 1988 amendment states
explicitly that the amendment was intended to deter piracy practices by “expanding
standing to sue ....” Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 912 (6th Cir.
2001) (citing H.R.Rep. No. 100–877(II), at 28, reprinted in 1988 U.S.C.C.A.N. 5638, 5657);
7

See DIRECTV Inc., v. Budden, 420 F.3d 521 (5th Cir. 2005) (section of Federal Communications Act defining
“person aggrieved” for purposes of standing to bring a civil claim for piracy of satellite cable programming does not limit
the definition only to those expressly identified, i.e, distributors of satellite cable programming and providers of equipment
necessary to receive satellite cable programming; rather, plain language of statute, in particular the phrase “shall include”
does not limit broad scope of piracy statute).

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DirecTV, Inc. v. Tasche, 316 F.Supp.2d 783 (E.D.Wis. 2004).8

Under the undisputed

facts presented by plaintiffs, it has been established that defendant García Alejandri
violated Section 605 (e)(4) as claimed by plaintiffs with its sale and distribution of modified
(programmed) receivers which were primarily used in the unauthorized decryption of
plaintiff Dish Networks’ signal in 2008 and 2010. Thus, plaintiffs’ request for summary
judgment in regards with its claim under §605(e)(4) is GRANTED.
B. Digital Millennium Copyright Act’s Violations.
Plaintiffs also claim that García Alejandri’s sale and distribution of FTA receivers and
internet-enabled FTA receivers, with the arrangements made of programming of these
receivers with piracy software, violates the Digital Millennium Copyright Act, 17 U.S.C.
§1201(a)(1)(A). In its relevant provision it states:
(2) No person shall manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device, component, or
part thereof, that-(A) is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work protected
under this title;
(B) has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a work
protected under this title; or
(C) is marketed by that person or another acting in concert with that person

8

Charter, 460 F.3d at 174 n. 9 (distinguishing from direct-to-home satellite services, which sends programming
directly to consumers rather than to cable operators who retransmit it to their subscribers). The issue in Charter dealt
with Section 605(a) and its application to communication by radio.

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with that person's knowledge for use in circumventing a technological
measure that effectively controls access to a work protected under this title.
17 U.S.C. §1201(a)(2).
Dish Network’s signals primarily contain works which are protected under copyright
laws. Plaintiffs’ uncontested facts have established the modified receivers sold and arranged
by defendant García Alejandri were primarily to circumvent Dish Network’s encryption and
the sale of said devices by defendant was done knowing these would be used for such
purpose, that is, to descramble/decrypt the cable and/or satellite television of plaintiffs.
To establish liability under the Digital Millennium Copyright Act,9 a plaintiff must
establish two elements: (1) defendant trafficked in a technology; and (2) the technology was
primarily designed or produced to circumvent conditional access controls to protected
works, or has limited commercially significant use other than such circumvention. Thus,
a cable television service, such as Dish Network, has standing to bring action against sellers
of above described FTA modified receivers, programming and software for the FTA/IKS
piracy software in violation of Cable Communications Policy Act and Digital Millennium
Copyright Act.

9

The Digital Millennium Copyright Act (Pub. L. No. 105–304, 112 Stat. 2860 (1998)) was enacted in 1998, to
adapt copyright law to the digital age. Two major provisions of the Act limited the liability for Internet service providers
of copyright infringement in certain instances and created an exception to liability for making a copy of a computer
program for computer maintenance and repair. Courts have begun to apply the Digital Millennium Copyright Act to
actions for copyright infringement. Amy P. Bunk, J.D., Validity, Construction, and Application of Digital Millennium
Copyright Act (Pub. L. No. 105–304, 112 Stat. 2860 (1998)), 179 ALR Fed 319.

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Additionally, the Supreme Court has expressly instructed that courts apply the
Copyright Act to new technologies. In Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417, 104 S.Ct. 774 (1984), the Court instructed that courts must “[a]pply[ ] the
copyright statute, as it now reads, to the facts as they have been developed” even though
Congress might ultimately “take a fresh look at this new technology, just as it so often has
examined other innovations in the past.” Id. at 456, 104 S.Ct. 774. The Supreme Court has
made clear that it is particularly important for courts to take this tack when faced with novel
Copyright Act issues. “[F]rom its beginning, the law of copyright has developed in response
to significant changes in technology,” and as “new developments have occurred in this
country, it has been the Congress that has fashioned the new rules that new technology
made necessary.” Id. at 430–31, 104 S.Ct. 774. See Sony BMG Music Entertainment v.
Tenenbaum, 660 F.3d 487, 501 (1st Cir. 2011).
Liability for theft of cable service is not limited to situations where cable services
have actually been intercepted and liability exists where a plaintiff proves that a defendant
intended to assist in the unauthorized reception of cable services.
As to this action, it has also been established defendant García Alejandri as a seller
knew the devices sold would be used to bypass cable service's encrypted and copyrighted
programs and avoid the billing mechanism and authorized subscriptions of customers, for
which plaintiffs’ service was or would be injured from loss of remuneration attributable to
its otherwise authorized subscribers. CoxCom, Inc. v. Chaffee, 536 F.3d 101 (1st Cir. 2008).

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Thus, based on the above summarized uncontested issues of fact, plaintiffs’ request
for summary judgment as to defendant’s violation of the Digital Millennium Copyright Act
is GRANTED.

C. Statutory Damages.
Insofar as the Communication Act, its relevant portions provides statutory damages
as follows:
(3)(A) Any person aggrieved by any violation of subsection (a) of this section
or paragraph (4) of this subsection may bring a civil action in a United States
district court or in any other court of competent jurisdiction. 47 U.S.C. §
605(e)(3)(A).
....
(ii) may award damages as described in subparagraph (C); and
(iii) shall direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who prevails.
47 U.S.C. § 605(e)(3)(B)(ii) and (iii).
....
(C)(I) Damages awarded by any court under this section shall be computed,
at the election of the aggrieved party, in accordance with either of the
following subclauses;47 U.S.C. § 605(e)(3)(C)(i).
....
(II) the party aggrieved may recover an award of statutory damages for each
violation of subsection (a) of this section involved in the action in a sum of
not less than $1,000 or more than $10,000, as the court considers just, and
for each violation of paragraph (4) of this subsection involved in the action
an aggrieved party may recover statutory damages in a sum not less than
$10,000, or more than $100,000, as the court considers just. 47 U.S.C.
§605(e)(3)(C)(i)(II).

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Plaintiffs have presented uncontested facts as to defendant having violated the
Communication Act as to the sale of at least two devices, the modified FTA device in 2008
and the internet-enabled FTA receiver in 2010, for which it is requesting the minimum
statutory damage as to each device sold and/or distributed by defendant in violation of
Section 605(e)(4) which is $10,000.00, as stated in 47 U.S.C. §605(e)(3)(C)(i)(II). Thus,
plaintiff seeks in its summary judgment motion and is entitled to $20,000.00 in statutory
damages for the two devices.
D. Costs and Fees.
Plaintiffs also seek an award of the investigatory costs and attorney’s fees associated
with this matter, which it is provided by 17 U.S.C. §1203 and/or 47 U.S.C. §605(e)(3)(B)(iii).
Plaintiffs aver said award is mandatory pursuant to §605(e)(3)(B)(iii).
Under § 605(e)(3)(B)(iii), an award of attorneys' fees is mandatory for any violations
of § 605(a). See Charter, 460 F.3d at 171 n.2. In this content, this Magistrate Judge ruled
above that plaintiffs established a violation of Section 605(e)(4) of the Communication
Act.10 As such, plaintiffs are entitled to costs and attorney’s fees. However, this Court will
hold in abeyance the amount of attorney’s fees and costs that may be awarded as to the
violations summarily established. Thus, the request for cost and attorney’s fees to be
imposed upon defendant is held in abeyance until plaintiffs submit a reasonable itemized
10

There is a difference between the wording of § 553(c) and § 605(e) for the award of attorneys' fees. Section
553 provides that the court “may ... direct the recovery of full costs, including awarding reasonable attorneys' fees to an
aggrieved party who prevails.” 47 U.S.C. § 553(c)(2)(C) (emphasis added). Although § 605, as amended by the 1984 Act,
contained an identical provision, Congress further amended § 605 in 1988 to provide that the court “ shall direct the
recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails.” Pub.L. No. 100667, § 205(8), 102 Stat. 3935, 3959 (1988) (codified at 47 U.S.C. § 605(e)(3)(B)(iii)) (emphasis added).

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claim for costs and fees so the Court may determine the reasonable amounts that will be
awarded.
E. Retention of Items Seized.
Plaintiffs further seek to be allowed full possession and seizure of all items seized
from defendant by a civil seizure order executed by the U.S. Marshal. (Docket No. 21).
Plaintiffs aver under Section 1203(b)(2) the Court may order the impounding of any device
or product it has reason to believe was involved in a violation of the Digital Millennium
Copyright Act’s anti-circumvention provisions. Plaintiffs refer their expert has stated the
items seized were involved in defendant García Alejandri’s piracy activities. (Docket No.
77, plaintiff’s Exhibit B, Kevin Gedeon’s statement ¶47).
A review of the return by the U.S. Marshal as it appears in the court’s record at
Docket No. 21 and Mr. Gedeon’s statement that the items showed in the inventory list
seized from defendant’s store were involved in piracy activities remain uncontested by
defendant’s limited opposition. Still, plaintiffs at all times have also submitted, through
their own experts, the inventory of articles and devices seized pursuant to the warrant not
only was similar to those involved in defendant’s piracy activities but had only limited
commercially significant purpose other than to circumvent Dish Network’s encryption and
conditional access technology. (Exhibit B, Gedeon’s statement ¶33 a-b; Exhibit Gee’s
statement C, ¶75 a-b).
Thus, said devices will be disposed by the U.S. Marshals’ Service upon order from the
Court at the conclusion of these proceedings.

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F. Permanent Injunction.
Plaintiffs requested a permanent injunction against defendant García Alejandri be
issued barring defendant from selling or distributing Dish Network piracy devices,
specifically from selling FTA receivers and internet-enabled FTA receivers while also taking
action to effectuate his purchasers obtaining Dish Network piracy software for the receivers.
Since the action requested from defendant basically is an order to follow and obey federal
policy law, the requirements usually to be met for a permanent injunction to be obtained
were omitted from discussion in plaintiffs’ memorandum. These requirements entail a
showing that plaintiff: (1) has suffered irreparable injury; (2) the remedies available at law,
such as monetary damages, are inadequate to compensate for the injury; (3) consideration
of the balance of hardships between plaintiff and defendant, indicates a remedy in equity
is warranted; and (4) the public interest would not be disserved by a permanent injunction.
Ebay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837 (2006); CoxCom Inc.
v. Chaffee, 536 F.3d 101, 112 (1st Cir. 2008).
Plaintiffs have herein established the probability of success on the merits criteria for
it is uncontested in summary judgment the devices at issue are designed or produced for
circumventing a measure that controls access to a copyrighted work; (2) the devices have
limited commercial purpose or use other than circumventing an access control measure;
or (3) the devices are marketed for use in circumventing an access control measure.
Likewise, plaintiff has shown the economic damage it has suffered and will continue to

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suffer, upon unlawful use by non-subscribers of their services. Clearly public interest has
been found for the public has an interest in compliance and enforcement of federal law. See
Coxcom, Inc. v. Chaffee, 536 F.3d 101, 112 (1st Cir. 2008).
Additionally, defendant’s opposition submits there is no contention that a permanent
injunction be issued in the sense that defendant García Alejandri is not to sell any Dish
Network for any illegal use, specially piracy of their programs and/or services. (Docket No.
89, pp. 1-2). Thus, the balance of hardships that defendant may suffer, upon absence of
opposition from defendant that it may suffer irreparable injury if the injunction is granted,
warrants same be granted as requested by plaintiffs. As such, permanent injunction is
GRANTED as requested.
CONCLUSION
In view of the foregoing, plaintiffs’ Motion for Summary Judgment (Docket No. 77)
is GRANTED IN PART AND DENIED IN PART as follows:
The request for summary judgment as to violation of Section 605(e)(4) of the
Communication Act, violation of the Digital Millennium Copyright Act, entitlement to
statutory damages, and issuing of a permanent injunction is GRANTED.
The request for summary judgment as to the plaintiffs’ request for costs and fees,
is held in abeyance and shall be determined once plaintiffs submit and itemize the same.

Dish Network, L.L.C., et al. v. Ashley García Alejandri, et al
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The requests for summary judgment as to a violation of Section 605(a) and for
plaintiffs to retain items seized pursuant to civil seizure warrant are DENIED.11
IT IS SO ORDERED.
San Juan, Puerto Rico, this 30th day of July of 2012.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE

11

Having established these items lack commercial purpose but for the piracy of the satellite television signal,
the U.S. Marshal will be ordered, on due course, to arrange for the proper disposition of these devices.