Opinion
Case No. 03-6126-HO.
August 19, 2004
ORDER
Plaintiff moves for default judgment against defendant Curtis Vankempen, pursuant to Fed.R.Civ.P. 55(b). Plaintiff also moves for entry of a permanent injunction. The court previously granted plaintiff's motion for entry of default against Vankempen. See Order dated March 10, 2004.
Discussion
Upon default, the factual allegations of the complaint are generally taken as true, except the allegations relating to damages. Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). The court is not required to make detailed findings regarding liability. Fair Housing of Marin v. Combs, 285 F.3d 889, 906 (9th Cir. 2002). The complaint alleges Vankempen (1) received and/or assisted others in receiving plaintiff's satellite transmissions of television programming without authorization in violation of 47 U.S.C. § 605(a), (2) intentionally intercepted, endeavored to intercept or procured others to intercept or endeavor to intercept plaintiff's satellite transmissions of television programming using pirate access devices in violation of 18 U.S.C. § 2511(1)(a), and (3) possessed and used pirate access devices, knowing or having reason to know that the design of such devices render them primarily useful for the purpose of surreptitious interception of DIRECTV's satellite transmissions of television programming, and that such devices, or any components thereof, have been or will be sent through the mail or transported in interstate or foreign commerce, in violation of 18 U.S.C. § 2512(1)(b). Complaint at 4-6. The complaint also contains more specific allegations as to how Vankempen allegedly came into possession of pirate access devices. Id. at 3-4.
The complaint defines "pirate access devices" as illegally modified DIRECTV access cards and other devices. Complaint at 2.
Based on these allegations, the court finds Curtis VanKempen liable on plaintiff's first and second claims alleging violations of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), respectively. The court does not find Curtis VanKempen liable on plaintiff's third claim for violation of 18 U.S.C. § 2512(1)(b). There is no private right of action for violation of Section 2512(1)(b).See e.g. DIRECTV v. Amato, Inc., 269 F. Supp.2d 688 (E.D.Va. 2003).
Where default judgment is possible based on sufficient allegations, the court retains discretion to grant or withhold judgment. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In this case, resolution on the merits is not possible, because Vankempen has not appeared; the allegations of the first and second claims state claims upon which relief may be granted; there are no disputed issues of fact as a result of Vankempen's non-appearance; and nothing suggests that Vankempen's default is the result of excusable neglect. Default judgment is therefore appropriate. Id.
Upon finding a violation of Section 605(a), the court may grant an injunction on such terms it deems just to restrain future violations. 47 U.S.C. § 605(e)(3)(B)(i). A person whose communication is intercepted in violation of 18 U.S.C. § 2511(1)(a) may obtain an injunction. 18 U.S.C. § 2520(b)(1). Following these standards, Curtis Vankempen is permanently enjoined from (1) receiving, assisting in receiving, transmitting, assisting in transmitting, divulging, or publishing DIRECTV satellite transmissions in violation of 47 U.S.C. § 605, and (2) intercepting, endeavoring to intercept, or procuring any other person to intercept or endeavor to intercept DIRECTV's satellite transmissions in violation of 18 U.S.C. § 2511(1)(a).
Plaintiff submitted a proposed form of permanent injunction. Many of the provisions in that document are overly broad. The court has attempted to craft its order to track the words in the statute.
Plaintiff seeks statutory damages in the amount of $10,000 for Vankempen's violations of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a). A party aggrieved by violation of Section 605(a) may recover statutory damages of not less than $1,000 or more than $10,000 for each violation as the court considers just. 47 U.S.C. § 605(e)(3)(C)(i)(II). A party whose communication is intercepted may recover damages in a civil action. 18 U.S.C. § 2520(a). A court has discretion to award statutory damages for violation of 18 U.S.C. § 2511(1)(a), but if it chooses to do so it must award the greater of $100 a day for each day of violation or $10,000. 18 U.S.C. § 2520(c)(2). Plaintiff submitted evidence that Vankempen purchased or possessed four pirate access devices: a programmer; an unlooper; a bootloader; and an emulator. There is no direct evidence as to how many times VanKempen successfully used pirate access devices, if at all. There is evidence that Vankempen told plaintiff's attorney that the bootloader and emulator did not work for his purposes, whatever those may have been, and he did not possess the devices for long. Long Decl., ¶ 3. Owing to the paucity of evidence that VanKempen actually received or assisted others in receiving plaintiff's satellite television signal, the court declines to award statutory damages.
A "programmer" is used to enable valid DIRECTV access cards to receive all DIRECTV programming, including pay-per-view events, without payment to DIRECTV. An "unlooper" is used to restore functionality to illegally modified access cards disabled by DIRECTV. A "bootloader" is a hardware device designed to permit the use of disabled access cards in DIRECTV receivers. An "emulator" is a device that allows a personal computer running pirate software to emulate certain functions of an access card.See Decl. of Jaime M. Sichler, ¶¶ 23, 24, 27, 28.
Plaintiff is entitled to an award of reasonable attorneys' fees and costs. 47 U.S.C. § 605(e)(3)(B)(iii) (award mandatory); 18 U.S.C. § 2520(b)(3) (award discretionary). Plaintiff seeks attorneys' fees in the amount of $3,634.58, and costs in the amount of $374.90. The attorneys' fee request is reasonable, and is allowed. Plaintiff submitted detailed documentation of attorney time expended. The award is based on hourly rates of $250 for Portland attorneys Long and Smith, admitted to practice in 1992 and 1991, respectively, and $180 for Portland attorney Tarbox, admitted in 1999. The rates are somewhat higher than average rates for Portland attorneys with similar experience reported in the 2002 Oregon State Bar Economic Survey (13-15 years = $189, 10-12 years = $187, 4-6 years = $165). The higher rates are justified to compensate for inflation, and because plaintiff's attorneys have significant experience litigating the claims at issue. According to plaintiff, its attorneys have filed 52 lawsuits against 190 defendants on it's behalf. The court is handling several of these cases, and has observed that the claims are similar in many, if not all of the cases with which the court is familiar.
The cost bill reflects costs expended for fees of the process server, photocopying and computerized legal research. Because computerized legal research normally saves attorney time, courts generally consider the cost an attorney fee, and not a taxable cost. See e.g. Haroco, Inc. v. American Nat'l Bank and Trust Co. of Chicago, 38 F.3d 1429, 1440-41 (7th Cir. 1994). The court disallows computerized legal research costs of $281.54, and allows the other costs totaling $93.36.
The court recognizes that plaintiff's itemized process server and photocopy costs total $93.37. See Bill of Costs at 2. However, after subtracting the amount claimed for legal research from the total amount claimed, one arrives at $93.36. The court resolves the one penny error against plaintiff.
Conclusion
For the foregoing reasons, plaintiff's motion for default judgment and permanent injunction [#42], motion for attorney fees and costs [#42], and cost bill [#49] relating to defendant Curtis Vankempen are granted to the extent provided herein.Curtis Vankempen is permanently enjoined from (1) receiving, assisting in receiving, transmitting, assisting in transmitting, divulging, or publishing DIRECTV satellite transmissions in violation of 47 U.S.C. § 605, and (2) intercepting, endeavoring to intercept, or procuring any other person to intercept or endeavor to intercept DIRECTV's satellite transmissions in violation of 18 U.S.C. § 2511(1)(a).
The clerk is directed to enter final default judgment against Curtis Vankempen. The judgment shall provide that plaintiff shall take no damages on its claims, and that plaintiff shall recover from Curtis Vankempen $93.36 in costs, and $3,634.58 in attorneys' fees for prosecuting this action.
IT IS SO ORDERED.