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Dish Network L.L.C., A Colorado v. Tab Whitehead D/B/A

December 12, 2011

DISH NETWORK L.L.C., A COLORADO LIMITED LIABILITY COMPANY, ECHOSTAR TECHNOLOGIES, L.L.C., A TEXAS LIMITED LIABILITY COMPANY, AND NAGRASTAR L.L.C., A COLORADO LIMITED LIABILITY COMPANY, PLAINTIFFS,
v.
TAB WHITEHEAD D/B/A WWW.FTA4BUS.COM A/K/A WWW.FTA4BIZ.COM AND D/B/A WWW.FTA4WORLD.COM AND D/B/A WWW.NAG3IKS.COM, DEFENDANT.



ORDER

This case is before the Court on Plaintiffs' Motion for Summary Judgment (Doc. 86), to which pro se Defendant Tab Whitehead ("Whitehead") has filed a response (Doc. 88). Plaintiffs move for summary judgment on Counts I and III of their Amended Complaint, which allege violations of the Digital Millennium Copyright Act ("DMCA") and the Communications Act. For the reasons stated below, Plaintiffs' Motion is due to be granted.

I. Background

A. Plaintiffs' Subscription-Based Satellite TV Programming

Plaintiffs DISH Network L.L.C. ("DISH Network"), EchoStar Technologies L.L.C. ("EchoStar Technologies"), and NagraStar L.L.C. ("NagraStar") operate various elements of the DISH Network satellite television distribution system. DISH Network is a multi-channel provider that delivers video, audio, and data services via a direct broadcast satellite system to more than 13 million subscribers throughout the United States, Puerto Rico and the U.S. Virgin Islands. EchoStar Technologies designs, develops, and distributes receiver systems, satellite dishes, and other digital equipment for use in the DISH Network system. NagraStar provides DISH Network with "smart cards" that are used in EchoStar Technologies' satellite receivers to facilitate the decryption of DISH Network's programming signals.

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. DISH Network contracts for and purchases the distribution rights for the copyrighted programming it broadcasts from outlets such as network affiliates, cable networks, motion picture distributors, sports leagues, event promoters, and other holders of programming rights. DISH Network then digitally encodes and scrambles the broadcast signals utilizing NagraStar's encryption technology, and delivers the scrambled signals via satellite to the EchoStar Technology dishes and receivers owned or leased by authorized subscribers.

The Plaintiffs' encryption system is designed to restrict access to their signals such that only those authorized subscribers can decrypt the signals for which they pay. (See Doc. 86-3, Declaration of Scott Anderson ("Anderson Dec.") ¶ 18.) To effectuate this decryption system, the Plaintiffs utilize smart cards which carry certain NagraStar encryption technology and the authorizations associated with a particular subscriber. (Id. ¶¶ 20-21.) The DISH Network smart cards and their associated technology are fundamental to the DISH Network security system in that they prevent unauthorized program viewing while simultaneously permitting authorized receivers used by legitimate subscribers to descramble the signals and obtain programming in accordance with the subscriber's subscription package or pay-per-view purchase. (Id. ¶ 24.)

B. Piracy of DISH Network Programming Using Free-To-Air Receivers

Satellite "pirates" have developed several means of circumventing the DISH Network security system and intercepting DISH Network satellite broadcasts using Free To Air ("FTA") satellite receivers.*fn1 In one such "work-around," the pirates created software which was programmed onto the FTA receiver so as to mimic a DISH Network smart card.*fn2 Once the FTA receivers were programmed with the card-hack software, the "modified" receiver could decrypt DISH Network's signals without authorization. The encryption system utilized by Plaintiffs until June of 2009, which pirates referred to as "Nagra 2," was susceptible to this form of piracy.*fn3 (Id. ¶¶ 27-40.)

In addition to the card-hack, pirates recently developed a new method of obtaining DISH Network's signals without authorization: Internet Key Sharing (IKS). IKS utilizes internet-enabled FTA receivers. (Id. ¶ 42.) In IKS piracy, the decoding keys which effectuate the decryption of DISH Network's signals are captured from legitimate accounts that certain pirates maintain or have access to. The pirates then place the decoding keys on a server connected to the internet. The servers allow the decoding keys to be shared over the internet such that internet-enabled FTA receivers programmed with modified FTA/IKS piracy software can utilize these decoding keys to decrypt DISH Network's signals without authorization. (Id. ¶ 45.)

C. Record Evidence of Whitehead's Distribution of Piracy Software

Plaintiffs, on the suspicion that Whitehead was involved in piracy of DISH Network signals, began an investigation into his activities in the summer of 2008. (Doc. 8, Declaration of Michael Jaczewski ("Jaczewski Dec.") ¶ 14.) In September of 2008, Whitehead sold an FTA receiver to an undercover investigator and subsequently directed the investigator to known piracy websites which would provide the software "support" necessary to modify the FTA receiver so as to effectuate the unauthorized interception of DISH Network signals. (Id. ¶¶ 18-21.) After a number of unsuccessful attempts, the investigator-with Whitehead's assistance-ultimately downloaded the necessary software to obtain DISH Network programming without authorization from the website www.fta4world.com, which Whitehead advised was "his own site." (Id. ¶¶ 22-23.)*fn4

At all times pertinent to the Complaint, Whitehead was the registrant of and the listed administrator/contact person for the internet sites www.fta4world.com and www.nag3iks.com (the "subject websites"). (Jaczewski Dec. ¶ 15; Anderson Dec. ¶¶ 60-61.)*fn5 The subject websites offered hundreds of software files for downloading which were designated or described as DISH Network piracy software files, including software files for many makes and models of FTA receivers and internet-enabled FTA receivers. (Doc. 86-4, Declaration of Daniel McMullen ("McMullen Dec.") ¶¶ 9-10.) Terms on the subject websites provided that access to the software downloads was available for a fee of $10.00 per month (Anderson Dec. ¶ 70). In addition, both websites contained language whereby Whitehead attempted to disclaim any liability pertaining to the distribution of piracy software files. (Id.)*fn6

In analyzing the software files offered for downloading and actually downloaded from the subject websites, Plaintiffs' software expert limited his analysis to those particular files which he had "previously examined and unequivocally determined to be DISH Network piracy software files." (McMullen Dec. ¶ 11.)*fn7 The website www.fta4world.com offered 29 previously identified DISH piracy software files for downloading, 19 of which were modified FTA Nagra 2 card-hack piracy software files and 10 of which were modified FTA/IKS piracy software files. These files were downloaded from the website to third parties on 11 occasions. (Id. ¶ 12). The website www.nag3iks.com offered 23 previously identified DISH Network piracy software files for downloading, 8 of which were modified FTA Nagra 2 card-hack piracy software files and 15 of which were modified FTA/IKS piracy software files. These files were downloaded from the website to third parties on 4 occasions. (Id. ¶ 13). Plaintiffs presented testimony that each of the downloaded files were primarily of use in the unauthorized interception of DISH Network signals, were designed or produced for the purpose of circumventing the Plaintiffs' digital encryption, and had little or no practical use other than for piracy. (Id. ¶ 14.) In fact, Plaintiffs' ...


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