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Thread: Federal Court enters final judgment against NFPS end-user Anthony Tarantino

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    Default Federal Court enters final judgment against NFPS end-user Anthony Tarantino

    Federal Court enters final judgment against NFPS end-user Anthony Tarantino, awards $10,000 in statutory penalties, and issues a permanent injunction

    On February 12, 2015 the United States District Court for the Southern District of California granted DISH Network and NagraStar’s motion for final judgment against Anthony Tarantino. Tarantino was sued by DISH Network and NagraStar for federal claims arising out of his subscription to the NFPS IKS service. The Court’s order includes a permanent injunction against Tarantino as well as an award of $10,000 in statutory damages (the maximum damages per violation) under the Electronics Communication Privacy Act and an additional $1,200 in costs and fees. DISH Network and NagraStar continue to investigate and take action against those responsible for trying to circumvent the companies’ security system in order to gain unauthorized access to DISH Network programming.

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    UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
    DISH NETWORK L.L.C., ECHOSTAR TECHNOLOGIES L.L.C., and NAGRASTAR LLC, Plaintiffs,
    CASE NO. 3:14-cv-02589-CAB-WVG ORDER GRANTING MOTION FOR DEFAULT JUDGMENT vs. [Doc. No. 7.] ANTHONY TARANTINO, Defendant.
    This matter comes before the court on Plaintiffs’ DISH Network L.L.C., Echostar Technologies L.L.C., and Nagrastar LLC (collectively “DISH Network” or “Plaintiffs”), motion for default judgment against Defendant Anthony Tarantino (“Defendant”) [Doc. 7.] No responsive pleading was filed. Having carefully read and considered DISH Network’s moving papers, the Court GRANTS the motion as set forth below. I. BACKGROUND A. Factual Background DISH Network is a multi-channel video provider that delivers copyrighted broadcasts to millions of paying customers throughout the United States, Puerto Rico, and the U.S. Virgin Islands via satellite. [Doc. No. 1 ¶¶ 9-12.] DISH Network encrypts
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    its satellite signals so that viewing the broadcasts requires a receiver and smart card that only decrypts programming that customers are authorized to receive as part of their paid subscription packages. [Doc. No. 1 ¶¶ 14-15.] The receiver processes the satellite signal by locating an encrypted part of the transmission known as the “entitlement control message” and forwards it to the smart card. [Doc. No. 1 ¶ 17.] The smart card uses its decryption keys to unlock the message, uncovering a control word, that is then transmitted back to the receiver to decrypt the DISH Network satellite signal, allowing customers to view the broadcast. [Doc. No. 1 ¶¶17-18.] Various devices are sold on the black market for the purpose of illegally decrypting or “pirating” DISH Network programming. [Doc. No. 1 ¶19.] One form of satellite piracy software is known as “internet key sharing” (“IKS”). This form of piracy involves connecting an unauthorized receiver to the internet which then automatically updates the piracy software and contacts the computer server, providing the necessary control words to unlock DISH Network programming. [Doc. No. 1 ¶ 22.] NFusion Private Server (“NFPS”) is a subscription-based IKS service that allows members to obtain the control words that are necessary to circumvent the DISH Network security system to view unauthorized programming. [Doc. No. 1 ¶ 25.] Defendant accessed the NFPS service by using an unauthorized receiver loaded with piracy software. [Doc. No. 1 ¶ 27.] Defendant used the NFPS server in order to decrypt DISH Network’s satellite signal and view broadcasts without having to purchase a subscription. [Doc. No. 1 ¶ 27.] Through IKS piracy, Defendant enjoys unlimited access to DISH Networking programming at the detriment of DISH Network. [Doc. No. 1 ¶ 28.] Plaintiffs’ complaint asserts the following causes of action against the Defendant: (1) circumventing an access control measure in violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1); (2) receiving satellite signals without authorization in violation of the Federal Communications Act, 47 U.S.C. § 605(a); and (3) Intercepting satellite signals in violation of the Electronic
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    Communications Privacy Act (ECPA), 18 U.S.C. §§ 2511(1)(a) and 2520. [Doc. No. 1 1.] B. Procedural History Plaintiffs filed the complaint in the instant action on October 30, 2014 against Defendant. [Doc. No. 1.] On December 2, 2014, substituted service was made in accordance to Federal Rule of Civil Procedure 4(e)(2)(b). [Doc. No. 4 at 4.] Defendant failed to appear or respond to the complaint. [Doc. 7-1 at 6.] On December 30, 2014, Plaintiffs requested an entry of default from the clerk of the court. [Doc. No. 5.] The clerk of the court entered Defendant’s default on December 31, 2014. [Doc. No. 6.] On January 21, 2015, Plaintiff filed an application for entry of default judgment against Defendant [Doc. No. 7.] II. LEGAL STANDARD Default judgment is governed by Federal Rule of Civil Procedure 55 and allows the court to enter default judgment “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). In light of Defendant’s failure to respond to the Complaint, all of the allegations in the Complaint, aside from the amount of damages, are deemed admitted. Fed. R. Civ. P. 8(b)(6); Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). It is within the Court’s discretion to enter default judgment following entry of default by the clerk. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); see Fed. R. Civ. P. 55(b)(2). In determining whether entry of default judgment is appropriate, the Ninth Circuit has identified seven factors for district courts to consider: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the
    Plaintiffs only address Count III in their motion for default judgment. As such,1 the Court only considered and addressed Count III when determining default judgment was appropriate. - 3 - 14cv2589
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    sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy favoring decisions on the merits. Eitel, 782 F.2d at 1471–72. III. DISCUSSION Plaintiffs seek default judgment against Defendant Anthony Tarantino, and request $10,000 in statutory damages and a permanent injunction. The Court concludes that a default judgment is appropriate here as discussed below. A. Eitel Factors The Eitel factors weigh in favor of granting default judgment. Denial of this motion would result in prejudice to Plaintiffs because they would be left without recourse in this matter since Defendant has refused to take part in litigation. Moreover, Defendant was properly served with the suit thus making his failure to respond inexcusable. Plaintiffs have adequately alleged Defendant violated the ECPA because Plaintiffs maintain that Defendant used the NFPS subscription-based IKS service in order to obtain DISH Network control words and thereby intercept DISH Network’s satellite signal without authorization. [Doc. No. 1 ¶¶ 25-27.] Additionally, the amount of damages sought by Plaintiff is relatively small and reasonable, which weighs in favor of granting default judgment. See Dish Network L.L.C. v. Gonzalez, No. 1:13-CV-00107-LJO, 2013 WL 2991040, at *4 (E.D. Cal. June 14, 2013) report and recommendation adopted, No. 1:13-CV-00107-LJO, 2013 WL 4515967 (E.D. Cal. Aug. 26, 2013) (“Because Congress has expressly authorized a court to award damages of $10,000, the Court cannot conclude that this amount is per se unreasonable such that it would preclude or weigh against the entry of default judgment.”). Thus, despite the policy of favoring decisions on the merits, courts frequently enter default judgments in cases with virtually indistinguishable facts. See id.; Dish Network, L.L.C. v.
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    Case 3:14-cv-02589-CAB-WVG Document 8 Filed 02/12/15 Page 4 of 7
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    Hoggard, No. 1:14-CV-00331-AWI, 2014 WL 2208104 (E.D. Cal. May 28, 2014); Dish Network L.L.C. v. Sanchez, No. 1:11-CV-01485-AWI, 2012 WL 2090439 (E.D. Cal. June 8, 2012). B. Statutory Damages Plaintiffs request statutory damages of $10,000 for Defendant’s violations of the ECPA. Section 2520(c)(2) authorizes statutory damages in the amount of $10,000, where a Defendant intentionally intercepts satellite television transmission without permission. See 18 U.S.C. §§ 2520(c)(1)-(2). Factors relevant to the appropriateness of statutory damages in a default judgment include: “(1) the severity or minimal nature of the violation; (2) whether there was actual damage to the victim; (3) the extent of any intrusion into the victim’s privacy; (4) the relative financial burdens of the parties; (5) whether there was a reasonable purpose for the violation; and (6) whether there is any useful purpose to be served by imposing the statutory damages amount.” Gonzalez, 2013 WL 2991040, at *8. Here, the factors identified in Gonzales weigh in favor of an award of $10,000 in statutory damages to Plaintiffs. Plaintiffs allege and provide evidence that Defendant purchased and used piracy software to unlawfully obtain access to Dish Network services. [Doc. No. 1 ¶¶ 25-27.] This benefitted the Defendant to the detriment of the Plaintiffs because Defendant did not have to pay DISH Network’s subscription fee to obtain access to its network, as required of legitimate subscribers. Piracy jeopardizes DISH Network’s security system and results in the need for costly updates, damages DISH Network’s reputation and goodwill, and leads to lost programming revenues and lost profits that are customarily gained from selling subscriptions and equipment to access DISH Network services. [Doc. No. 1 ¶ 28.] There is no justifiable explanation for Defendant’s conduct, thus awarding damages to Plaintiffs will serve the legitimate purpose of compensating DISH Network for its loss and deter Defendant and others from engaging in piracy.
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    Accordingly, the Court awards statutory damages to Plaintiffs in the amount of $10,000. Cf. Gonzalez, 2013 WL 2991040; Hoggard, 2014 WL 2208104. C. Permanent Injunction Plaintiffs also request that the Court issue a permanent injunction prohibiting Defendant from continuing to obtain DISH Network services through piracy software devices. The ECPA authorizes “preliminary and other equitable or declaratory relief as may be appropriate.” 18 U.S.C. § 2520(b)(1). A permanent injunction is warranted when a plaintiff demonstrates: “(1) that it 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). Here, permanent injunction is warranted. The Defendant’s piracy devices undermine the investment DISH Network makes in the technology it uses to provide satellite programming. [Doc. No. 7-1 at 12.] Millions of dollars are spent on security measures to protect DISH Network from people who engage in unauthorized use of its satellite programming via illegal software. [Doc. No. 7-1 at 12.] Defendant’s violation significantly damages Plaintiffs’ goodwill, reputation, and profits they are entitled to from legitimate subscribers. These harms cannot be cured solely with monetary damages. Absent an injunction, Defendant will continue conducting illegal activity resulting in further harm to Plaintiffs. The balance of hardships favors DISH Network because DISH Network will continue to suffer harm in the absence of an injunction whereas Defendant will no longer be able to engage in unlawful activity if an injunction is granted. Granting the injunction would additionally serve the public interest in upholding copyright protection. In light of these considerations, DISH Network is entitled to a permanent injunction against Defendant enjoining the further use of piracy software that enables
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    unauthorized access to DISH Network’s satellite programming. Cf. Hoggard, 2014 WL 2208104, at *6; Gonzalez, 2013 WL 2991040, at *10; Sanchez, 2012 WL 2090439, at *12. IV. CONCLUSION As set forth above, Plaintiffs’ motion for default judgment against Defendant is GRANTED. The Court ORDERS as follows: (1) The Court awards Plaintiffs $10,000 in statutory damages. (2) The Court issues permanent injunction enjoining Defendant from: (a) circumventing or assisting others to circumvent DISH Network’s security system, or otherwise intercepting or assisting others to intercept DISH Network’s satellite signal; (b) testing, analyzing, reverse engineering, manipulation, or extracting codes, data, or information from DISH Network’s satellite receivers, smart cards, satellite stream, or any other part or component of the Dish Network security system. (3) This permanent injunction shall take effect immediately. IT IS SO ORDERED.
    DATED: February 12, 2015
    _________________________ CATHY ANN BENCIVENGO United States District Judge

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