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Dish Network L.L.C., et al v. Benjamin Jones

July 16, 2012


The opinion of the court was delivered by: Schiller, J.


Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar LLCsued Defendant Benjamin Jones under several federal statutes for illegally intercepting copyrighted DISH Network satellite programming. Jones has not responded to the Complaint, and the Clerk of Court entered a default. Now before the Court is Plaintiffs' motion for a default judgment. For the following reasons, the Court grants the motion and awards statutory damages but denies Plaintiffs' request for a permanent injunction.


DISH Network provides television programming via satellite to approximately 14 million subscribers in exchange for subscription fees and pay-per-view purchase fees. (Compl. ¶¶ 9-10.) DISH Network purchases distribution rights for the programming it broadcasts from various copyright holders. (Id. ¶¶11-12.) The satellite signals are encrypted so that only subscribers with the necessary equipment-including a receiver from EchoStar Technologies and a smart card from NagraStar-can view DISH Network's programming. (Id. ¶¶ 13-14.)

Various devices and services have been developed for the purpose of illegally decrypting or "pirating" DISH Network programming. (Id. ¶ 19.) Under one method, known as "control word sharing," "internet key sharing," or simply "IKS," end users download software onto their computers and receivers that allow them to receive descrambling codes from a pirate computer server and descramble DISH Network programming. (Id. ¶¶ 20-21.) In a separate lawsuit, Plaintiffs seized the business records of a pirate IKS service called Dark Angel. (Id. ¶¶22-23.) Those records show that Jones purchased a subscription to Dark Angel's service on May 13, 2010. (Id. ¶ 24.) Jones used Dark Angel to receive descrambling codes that enabled him to view DISH Network programming without authorization. (Id. ¶¶ 25-26.)

Plaintiffs filed this action against Jones on March 12, 2012, alleging violations of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1201(a)(1), the Communications Act, 47 U.S.C. § 605(a), and the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2511(1)(a), 2520. Jones was served on March 27, 2012. After Jones failed to appear or respond to the Complaint within the required time frame, the Clerk of Court entered a default against him. Plaintiffs then moved for a default judgment.


A district court faced with a motion for default judgment should consider: (1) prejudice to the plaintiff if default is denied; (2) whether the defendant appears to have a litigable defense; and (3) whether the defendant's delay is due to culpable conduct. Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). The Court accepts as true any factual allegations, other than those as to damages, contained in the complaint. DIRECTV, Inc. v. Pepe, 431 F.3d 162, 165 n.6 (3d Cir. 2005).


A. Liability Under the ECPA

Plaintiffs have agreed to dismiss their DMCA and Communications Act claims if the Court enters a default judgment on their ECPA claim. (Pls.' Br. in Supp. of Mot. for Default J. at 10.) The ECPA makes it unlawful to "intentionally intercept[]" any "electronic communication." 18 U.S.C. § 2511(1)(a). The ECPA allows a private party to sue for damages and injunctive relief. See id. § 2520; Pepe, 431 F.3d at 167. Encrypted satellite television transmissions are "electronic communications" within the meaning of the ECPA. Pepe, 431 F.3d at 166. Plaintiffs' allegations that Jones subscribed to Dark Angel and used the service to view DISH Network programming without authorization are sufficient to state a claim under the ECPA. See, e.g., DISH Network L.L.C. v. Rounds, Civ. A. No. 11-241, 2012 WL 1158798, at *3 (W.D. Pa. Apr. 6, 2012) (holding that DISH Network stated an ECPA claim under similar facts); DISH Network L.L.C. v. DelVecchio, 831 F. Supp. 2d 595, 599 (W.D.N.Y. 2011) (same).

B. Default Judgment

Plaintiffs will suffer prejudice if the Court denies their motion for default judgment because they will have no other way to vindicate their claim against Jones. See Rounds, 2012 WL 1158798, at *3. The Court interprets Jones's silence to mean that he has no litigable defense to Plaintiffs' ECPA claim. See, e.g., Carpenters Health & Welfare Fund of Phila. v. NDK Gen. Contractors, Inc., Civ. A. No. 06-3283, 2007 WL 1018227, at *1 (E.D. Pa. Mar. 29, 2007). Finally, the Court concludes that Jones's failure respond to the Complaint is due to culpable conduct, as the docket indicates he was properly served. See, e.g., York Int'l Corp. v. York HVAC Sys. Corp., Civ. ...

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