Summary
granting injunctive relief for violations of CAN-SPAM Act, CFAA, and California Penal Code § 502
Summary of this case from Facebook, Inc. v. Power Ventures, Inc.Opinion
Case No. C-03-00718 RMW.
August 30, 2004
JANINE D. BLOCH, D. LILAH BLINDER, PRESTON GATES ELLIS LLP, San Francisco, CA.
KATHLEEN PETERSON, PRESTON GATES ELLIS LLP, Irvine, California, Attorneys for Plaintiff, MICROSOFT CORPORATION.
ORDER FOR PERMANENT INJUNCTION
Based on the Stipulation of the parties, it is hereby ORDERED as follows:
1. Pursuant to Federal Rule of Civil Procedure 65(d), Neoburst Net, LLC and Justin Michaels, their agents, officers, contractors, directors, shareholders, employees, subsidiary companies or entities, affiliated or related companies and entities, assignees, and successors-in-interest, and those in active concert or participation with them, are permanently enjoined from:
a. knowingly sending, transmitting, or advertising in, or directing, aiding, facilitating or conspiring with others to send, transmit, or advertise in, any commercial electronic communication of any kind that is in violation of any state or federal law. including but not limited to the federal CAN-SPAM Act, the federal Computer Fraud and Abuse Act ( 18 U.S.C. § 1030), the California Uniform Trade Secrets Act (California Civil Code §§ 3426 et seq), the civil enforcement provisions of California Penal Code § 502, trespass to chattels, and conversion and
b. knowingly using or directing aiding, facilitating, causing, or conspiring with others to use the computers or computer networks of Microsoft's communication services, including but not limited to MSN Internet Access or MSN Hotmail, in violation of or inconsistent with MSN Terms of Use located at http://privacy.msn.com/tou/; and
c. obtaining, compiling, selling, harvesting, mining, trafficking in, or trading, or directing, aiding, or conspiring with others to obtain, compile, sell, harvest, mine, traffic in, or trade e-mail addresses for the sending or delivery of any unsolicited bulk or unsolicited commercial electronic communications in violation of any state or federal law, or engaging in any other allegedly illegal acts or practices set forth in Microsoft's complaints for injunctive relief and damages filed in Case No. C-03-00718 RMW, in the United States District Court for the Northern District of California; and
d. opening, creating or accessing, or directing, aiding, facilitating or conspiring with others to open, create, or access any Microsoft's communication services accounts, including but not limited to MSN Internet Access or MSN Hotmail e-mail accounts, in a manner inconsistent with MSN Terms of Use; and
e. selling, offering for sale, or distributing, or directing, aiding, or conspiring with others to sell, offer for sale, or distribute, any software that allows the user to knowingly send unsolicited bulk or unsolicited commercial electronic communications that is in violation of any state or federal law, including but not limited to the federal CAN-SPAM Act, to any MSN communication services, including MSN Internet Access or MSN Hotmail, or to any other Internet subscriber.
2. Effect of Violation of this Injunction
a. Acknowledgement of Third-Party Beneficiaries. In the event that any of the persons set forth in Paragraph 1 violate this Injunction and thereby cause harm to any third parties, the aggrieved third parties shall have, and may properly assert, against those persons any and all rights under this Injunction in relation to said harm as could Microsoft, in the event that Microsoft had been the victim of said harm.
b. Damages In the Event of Breach. Defendants Neoburst.Net, LLC and Justin Michaels agree that in the event that any term of this Injunction is violated and that violation harms Microsoft or any third parties, and any such violation is proved to this Court or any other Court of competent jurisdiction, the persons set forth in Paragraph 1 shall be liable for the following liquidated damages:
i. Claim by Internet Service Provider. In the event the claim is asserted by an Internet Service Provider, liquidated damages of the GREATER of $25,000 or $2.00 per 1.000 electronic communications sent (whether the communication is designed to send e-mail, to harvest e-mail addresses, or otherwise), corresponding to the claimant's reputation and lost profit damages only ( i.e., the claimant may also prove and recover its other categories of damages in addition to the liquidated damages for reputation/lost profits). The claimant shall also recover its associated attorneys' fees, expenses, and costs.
ii. Claim by End-User. In the event the claim is asserted by an individual end-user, domain owner, or Internet subscriber ( i.e., an end-user victim on the Internet), liquidated damages of $1,000 per e-mail or other unauthorized electronic signal (including but not limited to signals designed to ascertain the validity of an e-mail address), plus all associated attorneys' fees, expenses, and costs.
iii. Right to Waive Liquidated Damage Rights. In the event that the persons set forth in Paragraph 1 violate this Injunction or injure or aggrieve more than one domain owner, Internet subscriber, or Internet Service Provider, those persons shall be liable to each injured or aggrieved party in the full amount of the specified damages. Any parties so injured or aggrieved shall have the right to waive their liquidated damage-related rights hereunder and instead prove and recover actual damages in relation to that category or type of damages (as well as any other legally cognizable damages it suffers).
3. Defendants Neoburst Net, LLC and Justin Michaels shall provide a copy of this Stipulated Permanent Injunction to each person identified in Paragraph 1 as well as any other employees, agents, contractors or affiliates acting on his or their behalf in regard to any electronic marketing.