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Dish Network L.L.C. v. Baker

United States District Court, W.D. Missouri, Southern Division

March 3, 2017

MIKE BAKER, Defendant.



         Pending before the Court is Plaintiffs DISH Network L.L.C. (“DISH Network”), EchoStar Technologies L.L.C. (“EchoStar”), and NagraStar LLC (“NagraStar”) (collectively, “Plaintiffs”)' motion for default judgment against Defendant Mike Baker. (Doc. 11.) For the reasons below, the motion is GRANTED in part and DENIED in part.

         I. Background

         This action is brought pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. (Count I), the Federal Communications Act, 47 U.S.C. § 605 et seq. (Count II), and the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511 et seq. (Count III). (Doc. 1.)

         A. Facts Alleged in the Complaint

         DISH Network is a multi-channel video provider that delivers video, audio, and data services via a direct broadcast satellite system to approximately 14 million subscribers. (Doc. 1 at ¶ 9.) DISH Network uses high-powered satellites to broadcast, among other things, movies, sports and general entertainment services to consumers who have been authorized to receive such services after payment of a subscription fee, or in the case of a pay-per-view movie or event, the purchase price. (Id. at ¶ 10.) DISH Network contracts for and purchases the distribution rights for most of the programming broadcast on the DISH Network platform from providers such as network affiliates, pay and specialty broadcasters, cable networks, motion picture distributors, sports leagues, and other holders of programming rights. (Id. at ¶ 11.) The works broadcast on the DISH Network platform are copyrighted. (Id. at ¶ 12.) DISH Network has the authority of the copyright holders to protect these works from unauthorized reception and viewing. (Id.) DISH Network programming is digitized, compressed, and scrambled prior to being transmitted to multiple satellites located in geo-synchronous orbit above Earth. (Id. at ¶ 13.) The satellites then relay the encrypted signal back down to Earth where it can be received by DISH Network subscribers. (Id.) The subscribers utilize particular equipment necessary to decrypt and access the video, audio, and data services provided to them by DISH Network. (Id.)

         The equipment involved in a subscriber's DISH Network satellite television system consists of a compatible dish antenna, receiver, smart card which in some instances is internalized in the receiver, television, and cabling to connect the components. (Id. at ¶ 14.) EchoStar provides receivers, dish antenna, and other digital equipment for the DISH Network system. (Id.) Smart cards and other proprietary security technologies that form a conditional access system are supplied by NagraStar. (Id.) The receiver processes an incoming DISH Network satellite signal by locating an encrypted part of the transmission known as the entitlement control message and forwards that message to the smart card. (Id. at ¶ 17.) Provided that the subscriber is tuned to a channel he is authorized to watch, the smart card uses its decryption keys to unlock the message, uncovering a control word. (Id.) The control word is then transmitted back to the receiver in order to decrypt the DISH Network satellite signal. (Id.) Each receiver and smart card is assigned a unique serial number which is used by DISH Network when activating the equipment, and to ensure the equipment only decrypts programming that the customer is authorized to receive as part of his subscription package and pay-per-view purchases. (Id. at ¶ 15.)

         NFusion Private Service (“NFPS”) is a pirate internet key sharing (“IKS”) subscription-based service that improperly provides end-users computer software and decryption codes needed to unscramble DISH Network television programming without authority and without payment of a subscription fee to DISH Network. (Id. at ¶ 25.) Defendant improperly used the NFPS pirate IKS service and server to obtain DISH Network's decryption control words to illegally receive and unscramble DISH Network copyrighted television programming. (Id. at ¶¶ 26-27.) Through IKS piracy, Defendant enjoys unlimited access to DISH Network programming, including premium and pay-per-view channels. (Id. at ¶ 28.)

         B. Procedural Background

         On November 10, 2016, Plaintiffs filed a return of service of the Complaint showing that Defendant was served on September 12, 2016. (Doc. 5.) Defendant's Answer was due on or before October 3, 2016. (Id.) To date, no Answer has been filed. On November 15, 2016, Plaintiffs filed a request for Clerk's entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure (doc. 8), and a Clerk's entry of default was entered on December 9, 2016 (doc. 10). Plaintiffs then filed the instant motion for default judgment on January 6, 2017. (Doc. 11.) To date, there has been no response to the motion and the time for doing so has passed.

         C. Motion for Default Judgment

         Plaintiffs seek a default judgment only on Count III. In addition to the well-pleaded factual allegations that are taken as true, Plaintiffs submitted sworn affidavits in support of their motion for default judgment. (Docs. 13, 14.) Plaintiffs seeks statutory damages in the amount of $10, 000 and a permanent injunction under 18 U.S.C. § 2520.

         II. Standard

         An entry of default from the Clerk of the Court pursuant to Federal Rule of Civil Procedure 55(a) is a prerequisite to a default judgment under Rule 55(b). Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). Upon default, the well-pleaded factual allegations in the complaint are taken as true, except facts relating to the amount of damages, which must be proved separately by either a hearing or other evidence on the record. See Stephenson v. El-Batrawi, 524 F.3d 907, 915-16 (8th Cir. 2008); Angelo Iafrate Constr., LLC v. Potashnick Constr., Inc., 370 F.3d 715, 722 (8th Cir. 2004) (citation omitted) (“A default judgment entered by the court binds the party facing the default as having admitted all of the well-pleaded allegations in the plaintiff's complaint.”). “The need for a hearing is within the sound discretion of the district court under Fed.R.Civ.P. 55(b)(2)(B).” Stephenson, 524 F.3d at 916 (citation omitted); see e.g., J & J Sports Prods., ...

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