Opinion
3:12-cv-00157-BTM-NLS
01-23-2012
DISH NETWORK L.L.C., ECHOSTAR TECHNOLOGIES L.L.C., and NAGRASTAR LLC, Plaintiffs, v. MILES DILLION and DOES 1-10 d/b/a www.myfreeneeds.tv and www.myfreeneeds.com, Defendants.
ORDER GRANTING PLAINTIFFS' EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER, SEIZURE, AND IMPOUNDMENT
Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar LLC (collectively, "Plaintiffs" or "DISH Network") have moved ex parte for a temporary restraining order ("TRO") and order authorizing seizure and impoundment under Fed. R. Civ. P. 65, 17 U.S.C. § 1203(b)(1)-(2), and 47 U.S.C. § 605(e)(3)(B)(i), because Defendants Miles Dillion and Does 1-10 (collectively, "Defendants") are trafficking in piracy devices in violation of federal laws.
This Court, having reviewed the complaint, moving papers, and declarations submitted by DISH Network, finds that:
(a) DISH Network is likely to succeed on the merits in showing that Defendants are offering, providing, or otherwise trafficking in pirate software to the public using the www.myfreeneeds.tv and www.myfreeneeds.com domains (collectively, the "MFN domains"). The pirate software is primarily designed and used for circumventing the DISH Network security system and assisting others in receiving, intercepting, and decrypting DISH Network satellite television programming without authorization;
(b) The continued distribution of pirate software using the MFN domains will result in immediate and irreparable injury to DISH Network if a temporary restraining order and order for the seizure and impoundment of the websites, pirate software, and records pertaining thereto, is not ordered;
(c) The resulting harm to DISH Network in not granting the temporary restraining order and order authorizing seizure and impoundment outweighs any injury this relief will cause to Defendants;
(d) The public interest will be served by entering a temporary restraining order and order for seizure and impoundment of the MFN domains;
(e) Entry of an ex parte order is warranted because Defendants or other persons acting in concert with them, may destroy, move, hide, alter, or otherwise make pirate software, domains, records, and other evidence inaccessible to the Court if DISH Network were to proceed on notice to Defendants, thus frustrating the ultimate relief DISH Network seeks in this action.
THEREFORE, it is hereby,
ORDERED that, pending a preliminary injunction hearing to be held as set forth below, Defendants and any of their officers, agents, servants, employees, and those acting in active concert or participation with them who receive actual notice of this Order are TEMPORARILY ENJOINED and MUST RESTRAIN from directly or indirectly:
(a) manufacturing, importing, offering to the public, providing, linking to, or otherwise trafficking in (i) pirate software; and (ii) any other device or service used in circumventing DISH Network's security system or intercepting DISH Network programming;
(b) receiving or assisting others to receive DISH Network's satellite signal or other electronic communications originating from DISH Network's system without authorization;
(c) transferring, removing, eneumbering, or permitting withdrawal of any assets or property belonging to Defendants, whether real or personal, tangible or intangible, including cash, bank accounts of any kind, stock accounts, bonds, and title to Defendants property; and
(d) destroying, hiding, or altering any books or records, whether in hard copy or electronic form, regarding satellite television websites or domains, businesses, or finances of Defendants, including registration profiles of forum members, Internet Protocol logs, discussion threads, invoices, purchase orders, receipts, shipping records, banking or investment records, or any documents that identify manufacturers, exporters, importers, dealers, purchasers, or website owners and operators of the devices identified in subsection (a) above, or persons involved in operating any Internet Key Sharing ("IKS") server or receiving control words from same.
IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and their affiliates, and the registries of the MFN domains and their affiliates, including Verisign, Inc., and all others who receive notice of this Order, shall not transfer ownership of the MFN domains during the pendency of this action, except as directed herein, until further order of this Court;
IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and their affiliates, and the registries of the MFN domains and their affiliates, including Verisign, Inc., and all others who receive notice of this Order, shall immediately change the registrar of record for the MFN domains to a holding account with GoDaddy.com, Inc. provided by Plaintiffs at Plaintiffs' expense. Upon such transfer of the MFN domains into the holding account, GoDaddy.com, Inc. will hold the MFN domains in trust for the Court during the pendency of this action. Additionally, GoDaddy.com, Inc. shall immediately update the Domain Name System ("DNS") data it maintains for the MFN domains, which links the MFN domains to the Internet Protocol ("IP") addresses where their associated websites are hosted, to the appropriate name server(s) provided- by Plaintiffs, which will cause the MEN domains to resolve to http://www.dishnetworkservingnotice,com/myfreeneeds/index.html, a website registered and controlled by Plaintiffs, where a copy of the Complaint, Ex Parte Motion for TRO, this Order, and other documents On file in this action Will be displayed. Alternatively, GoDaddy.com, Inc. may instate domain name forwarding which will automatically redirect any visitor of the-MFN domains to http://www.dishnetworkservingnoticc.com/myfreeneeds/index.html, a website registered and controlled by Plaintiffs, where a copy of the Complaint, Ex Parte Motion for TRO, this Order, and other documents on file in this action will be displayed. Alternatively, GoDaddy.com, Inc. may use whatever means necessary to accomplish the redirect of the MFN domains to resolve to heep://www.dishnetworkservingnotice.com/myfreeneeds/indx.heml, a website registered and controlled by Plaintiffs, where a copy of the Complaint, Ex Parte Motion, for TRO, this Order, and other documents on file in this action will be displayed.
After GoDaddy.com, Inc. has effected this change, Defendants, registrars, registries, and all others who receive notice of this Order, are ordered to keep the MFN domains frozen and placed on lock status to prevent the MFN domains from being modified, sold, transferred to another owner, or deleted, until further order of this Court. This process shall effectively seize and impound the MFN domains so that their contents, including the availability of pirate software files, are no longer accessible on the Internet, until further order of this Court.
IT IS FURTHER ORDERED that Plaintiffs and/or GoDaddy.com, Inc. may cancel or reverse any redirect of the MFN domains to another domain name caused by Defendants, thereby evading the provisions of this Order.
IT IS FURTHER ORDERED that Defendants, the registrars of the MFN domains and their affiliates, and the registries of the MFN domains and their affiliates, including Verisign, Inc., and all others who receive notice of this Order, shall preserve and not destroy any records, including electronic records, relating to the MFN domains and shall take all steps necessary to retrieve electronic records relating to the MFN domains that may have been deleted before the entry of this Order;
IT IS FURTHER ORDERED that DISH Network is granted leave to provide electronic notice via substituted service via email, and therefore, shall serve a copy of all pleadings and other documents on file in this case, including this Order, on Defendants via email to the known email addresses associated with Defendants as follows:
milesforums@hotmail.com;
complaints@key-systems.net;
contact@privacyprotect.org;
IT IS FURTHER ORDERED that DISH Network is granted leave to provide electronic notice via substituted service via website publication, and therefore, shall post a copy of all pleadings and other documents on file in this case, including this Order, on the website located at http://www.dishnetworkservingnotice.com/myfreeneeds/index.html, upon transfer of the MFN domains into the holding account with GoDaddy.om, Inc., and that such notice via website publication so given, shall be deemed good and sufficient service thereof.
IT IS FURTHER ORDERED that the bond to be posted by DISH Network is set to zero dollars.
IT IS FURTHER ORDERED this Temporary Restraining Order shall remain in effect until the date for the show cause hearing on DISH Network's motion for preliminary injunction set forth below, or until such further dates as set by the Court or stipulated by the parties;
IT IS FURTHER ORDERED that Defendants shall show cause before this Court, located at 880 Front Street, San Diego, California 92101, on January 1, 2012 at 2 a.m., or as soon thereafter as counsel can be heard, why an order should not be entered granting DISH Network a preliminary injunction in the above form and continuing the impoundment and seizure of the MFN domains under this Order. Defendants are hereby on notice that failure to appear at this hearing may result in the imposition of a preliminary injunction against them pursuant to Fed. R. Civ. P. 65; and
IT IS FURTHER ORDERED that Defendants' answering papers shall be filed with the Court and served on DISH Network on or before January 30, 2012, and that DISH Network shall file and serve any reply on or before January 31, 2012
Defendants are warned that any act by them in violation of any of the terms of this Order after proper notice to them may be considered and prosecuted as contempt of this Court.
IT IS SO ORDERED:
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UNITED STATES DISTRICT JUDGE