The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER GRANTING PRELIMINARY INJUNCTION
In an order filed on January 23, 2012, the Court granted Plaintiff's ex parte motion for a temporary restraining order, seizure, and impoundment, and ordered Defendants to show cause why a preliminary injunction should not be entered. The Court held a hearing on the OSC on February 1, 2012. Defendants did not file any opposition papers and did not appear. For the reasons discussed below, the Court GRANTS Plaintiffs' motion for preliminary injunction.
DISH Network LLC ("DISH") provides copyrighted satellite television programming to approximately 14 million subscribers throughout the United States. (Duval Decl. ¶¶ 4-5.) To limit its programming to authorized subscribers, DISH encrypts its satellite signal, and authorized subscribers are provided with the necessary equipment (dish antenna, receiver, and smart card) to decrypt the signal and view the programming. (Id. at ¶¶ 6-7.) Defendant EchoStar Technologies ("EchoStar") provides receivers and dish antenna for the DISH Network system. (Id. at ¶ 7.) Smart cards and other propriety security technologies are supplied by NagraStar LLC ("Nagrastar"). (Id.)
The receiver and smart card work together to convert DISH's encrypted satellite signal into viewable programming that can be displayed on the attached TV of an authorized DISH subscriber. (Id. at 10.) The receiver processes an incoming DISH satellite signal by locating an encrypted part of the transmission (the "entitlement control message") and forwarding it to the smart card. (Id.) The smart card, which stores data called decryption keys, unlocks the message by uncovering a control word and transmits the control word back to the receiver. Id.
Satellite television pirates have developed methods for circumventing DISH 's security system and intercepting DISH programming. One method involves loading software containing the proprietary data and keys to DISH's security system ("piracy software") onto circuit chips within unauthorized receivers, mimicking legitimate NagraStar smart cards. (Id. at 11.) Another method involves "control word sharing" or "internet key sharing": a pirate computer server sends descrambling codes (often extracted from a paid subscription) to internet end-users who have downloaded piracy software onto their receivers so that their receivers are programmed to receive the descrambling control words and utilize the control words to descramble DISH programming. (Id. at ¶¶ 13-15.)
The domain www.myfreeneeds.com was created on April 8, 2010. (Gee Decl. ¶ 7.) Prior to the issuance of the TRO, this domain automatically redirected visitors to www.myfreeneeds.tv, a subsequently created domain. (Id. at ¶ 13.) WHOIS historical records identify the registrant of www.myfreeneeds.com as "Miles Dillion." (Id. at ¶ 8.) The registrants of www.myfreeneeds.tv are not currently known because the registrants used a proxy service, PrivacyProtect.org, which conceals their identities. (Id. at ¶ 10.) (This Order refers to both domains as the "MFN website.")
The MFN website has over 40,000 registered members. (Gee Decl. ¶ 18.) Based on an investigation by Nagrastar, it was determined that all 120 different files made available for download through the MFN domains are capable of stealing unlimited amounts of DISH satellite television programming. (McMullen Decl. ¶ 22.) Each of the 120 different files are pirate software files used to enable unauthorized devices to intercept, receive, and decrypt DISH satellite television programming by circumventing DISH's security system. (Id.) A detailed description of the different software files is set forth in ¶¶ 23-142 of the McMullen Declaration.
On January 23, 2012, the Court granted Plaintiff's ex parte motion for temporary restraining order, seizure, and impoundment. On January 27, 2012, Verisign transferred myfreeneeds.com and myfreeneeds.tv to GoDaddy and GoDaddy put them on lock down status and took them offline. (Hagan Decl. dated Jan. 31, 2012, ¶ 20.) On January 28, 2012, the firstname.lastname@example.org sent an email to all MFN members, explaining that DISH had seized their domains but that they were back "stronger then [sic] ever." (Ex. 10 to Hagan Decl.) The email stated, "No need to be afraid we at this point still the most secure forum on the web as they did NOT get access to the data or server and never will." On January 29, Mr. Hagan confirmed that Defendants had relaunched their content on myfreeneeds.net. (Id. at ¶ 22.) The structure and content of the .net website is virtually identical to the .com and .tv websites. (Id.) On the .net website an administrator, "Mr Sonicview," explained that although the myfreeneeds.com and myfreeneeds.tv domains were being "redirected" to DISH, DISH did not have access to their servers. (Ex. 12 to Hagan Decl.) The administrator stated, "Do not be supprized [sic] if you see us change the domain out of the country once again very fast." The administrator also stated, "Dish is pathetic if they think they can stop the freedom of speech."
A plaintiff seeking a preliminary injunction or temporary restraining order must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).
The Ninth Circuit has held that the "sliding scale" approach to preliminary injunctions survives Winter when applied as part of the four-element Winter test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In other words, "'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135.
The Court is convinced that Plaintiffs are entitled to a preliminary injunction. As discussed below, Plaintiffs have established that they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tip in their favor, and an injunction is in the public interest.
A. Merits of Plaintiff's Legal Claims
Based on the evidence before the Court, it appears that Plaintiffs are likely to succeed on the merits ...