Wavve Americas Incorporated v. Unknown Party

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Wavve Americas Incorporated, No. CV-24-02071-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Unknown Party, et al.,

13 Defendants. 14 15 Pending before the Court is a motion for an ex parte temporary restraining order 16 (“TRO”) and preliminary injunction filed by Plaintiff wavve Americas, Inc. (“Plaintiff”). 17 (Doc. 22.) For the reasons that follow, the TRO application is granted as to Defendants 18 and the motion for preliminary injunction is granted as to nonparty Namecheap, Inc. 19 (“Namecheap”). The preliminary injunction motion as to Defendants remains pending. 20 RELEVANT BACKGROUND 21 On August 14, 2024, Plaintiff filed the complaint, alleging copyright infringement 22 by the following Defendants: (1) Unknown Registrant of GOPLAY.PW; (2) Unknown 23 Registrant of SONAGITV.LIVE; (3) Unknown Registrant of KOTBC.COM; (4) Unknown 24 Registrant of YEWOOTV.COM; (5) Unknown Registrant of TV25.CO; and (6) James 25 Marque, the registrant of SAFETV-ONLINE.COM. (Doc. 1 at 1.) The complaint alleged 26 that Defendants “have registered the domain names of GOPLAY.PW, SONAGITV.LIVE, 27 KOTBC.COM, SAFETV-ONLINE.COM, YEWOOTV.COM, and TV25.CO” with 28 Namecheap, an Arizona-based domain registrar with a website at NAMECHEAP.COM. 1 (Id. ¶ 3.) The complaint further alleged that these domain names lead to webpages where 2 the public can view, free of charge, “media content, including TV shows and movies . . . 3 many of which are exclusively licensed to [Plaintiff] for distribution in the United States.” 4 (Id. ¶ 18.) Defendants allegedly “use rotating or varying subdomains” in order to “frustrate 5 enforcement efforts.” (Id.) 6 That same day, Plaintiff filed an ex parte motion for TRO and motion for 7 preliminary injunction requiring Namecheap “to disable and place a registry hold on the 8 domain names for the pendency of the litigation” and “to unmask and reveal the actual 9 identity of each of the unknown registrants of the [domain names].” (Doc. 3 at 1-2.) 10 Plaintiff also filed a motion to engage in expedited discovery by serving a subpoena on 11 Namecheap to “identify the unknown defendants.” (Doc. 6 at 4.) 12 On August 16, 2024, the Court issued an order denying the requested injunctive 13 relief because it would have only been directed toward Namecheap, a non-party, and not 14 toward Defendants. (Doc. 17.) In the same order, the Court granted Plaintiff’s request to 15 engage in expedited discovery. (Id.) 16 On August 26, 2024, Plaintiff filed a renewed application for a TRO and motion for 17 preliminary injunction, this time seeking injunctive relief as to Defendants as well as 18 Namecheap. (Doc. 18.) 19 On August 28, 2024, Plaintiff filed a motion to withdraw its August 26, 2024 filing. 20 (Doc. 19.) Plaintiff explained that it had “identified at least one additional defendant that 21 it will be adding to this matter in a forthcoming First Amended Complaint” and therefore 22 sought to withdraw the renewed motion “to preserve judicial resources.” (Id.) The Court 23 granted the withdrawal motion. (Doc. 20.) 24 On September 5, 2024, Plaintiff filed a first amended complaint (“FAC”), which 25 added a new Defendant, Unknown Registrant of TV25.INFO. (Doc. 21.) Plaintiff also 26 filed a second renewed application for a TRO and motion for preliminary injunction (Doc. 27 22), which, like its withdrawn predecessor, seeks an ex parte TRO as to Defendants and 28 indicates that Namecheap has stipulated to entry of “any order issued by the Court requiring 1 Namecheap to act or to refrain from acting with regard to the domain names at issue in this 2 action, . . . including but not limited to disabling public access to, placing a registry hold 3 on, and/or transferring ownership of the [domain names].” (Doc. 22-2 at 14.) This latest 4 motion for injunctive relief also seeks an order permitting expedited discovery from 5 “Vautron Rechenzentrum AG as Registrar of record for TV25.INFO for the purpose of 6 learning the identity of the registrant of TV25.INFO.” (Doc. 22 at 2.) 7 ANALYSIS 8 I. Ex Parte TRO As To Defendants 9 A. Legal Standard 10 Under Rule 65 of the Federal Rules of Civil Procedure, a party may seek injunctive 11 relief if it believes it will suffer irreparable harm during the pendency of an action. There 12 are two types of injunctions available under Rule 65: TROs and preliminary injunctions. 13 Although both are governed by the same substantive standards, see Stuhlbarg Int’l Sales 14 Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), a TRO may be 15 issued without notice to the adverse party. More specifically, under Rule 65(b)(1), the 16 Court “may issue a temporary restraining order without written or oral notice to the adverse 17 party or its attorney” if two requirements are met: (1) “specific facts in an affidavit or a 18 verified complaint clearly show that immediate and irreparable injury, loss, or damage will 19 result to the movant before the adverse party can be heard in opposition”; and (2) “the 20 movant’s attorney certifies in writing any efforts made to give notice and the reasons why 21 it should not be required.” The Ninth Circuit has cautioned that “very few circumstances 22 justify the issuance of an ex parte TRO.” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 23 1126, 1131 (9th Cir. 2006). 24 On the merits, “[a] preliminary injunction is an extraordinary and drastic remedy, 25 one that should not be granted unless the movant, by a clear showing, carries the burden of 26 persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (cleaned up). See also 27 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is 28 an extraordinary remedy never awarded as of right.”) (citation omitted). “A plaintiff 1 seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, 2 [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that 3 the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 4 Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are serious questions 5 going to the merits—a lesser showing than likelihood of success on the merits—then a 6 preliminary injunction may still issue if the balance of hardships tips sharply in the 7 plaintiff’s favor, and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. 8 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (cleaned up). Under this “serious 9 questions” variant of the Winter test, “[t]he elements . . . must be balanced, so that a 10 stronger showing of one element may offset a weaker showing of another.” Lopez, 680 11 F.3d at 1072. Regardless of which standard applies, the movant “carries the burden of 12 proof on each element of either test.” Env’t. Council of Sacramento v. Slater, 184 F. Supp. 13 2d 1016, 1027 (E.D. Cal. 2000). 14 B. Discussion 15 Plaintiff seeks an ex parte TRO directed toward the seven Defendants in this action 16 that is fairly narrow in scope. Plaintiff simply requests that the seven Defendants be 17 ordered to “promptly upon receipt of a copy of this Order disable public access to their 18 respective domain name(s) until further notice.” (Doc. 22 at 3.) 19 As noted, one of the threshold requirements under Rule 65(b)(1) when a party seeks 20 an ex parte TRO is that the “movant’s attorney certifies in writing any efforts made to give 21 notice and the reasons why it should not be required.” Here, Plaintiff’s counsel has 22 provided a detailed declaration that identifies an array of reasons why notice should not be 23 required, including that “many of the Domain Names1 have sophisticated mechanisms in 24 place to routinely move the infringing content to similar but unique domain names and to 25 advise their viewer based of such changes. If given notice of this action, Defendants are 26 1 Plaintiff uses the terms “Domain Names” or “Subject Domain Names” to refer to 27 the domain names at issue in the FAC—that is, the domain names (GOPLAY.PW, SONAGITV.LIVE, KOTBC.COM, SAFETV-ONLINE.COM, YEWOOTV.COM, 28 TV25.CO, and TV25.INFO) used to define the defendants who are registrants of these domain names. The Court will follow suit. 1 likely to undertake quick and widespread efforts to quickly register new domain names to 2 host the infringing works and to inform their viewership of such new domain names. These 3 types of evasive actions would then require [Plaintiff] to file additional lawsuits to keep 4 chasing the registrants of these Domain Names as the infringing content is shifted with 5 little interruption to the infringement itself.” (Doc. 22-1 ¶ 10.) The Court is satisfied that 6 notice should not be required under these circumstances. 7 The other threshold requirement under Rule 65(b)(1) is that the movant come 8 forward with “specific facts in an affidavit or a verified complaint [that] clearly show that 9 immediate and irreparable injury, loss, or damage will result to the movant before the 10 adverse party can be heard in opposition.” That requirement is satisfied by a declaration 11 from Jeongphil (“JP”) Joo, Plaintiff’s administrative director. (Doc. 4.) The Joo 12 declaration confirms, in broad strokes, the factual allegations in the FAC and explains why 13 Defendants’ “continued uploading of Korean programming exclusively licensed to 14 [Plaintiff] will cause [Plaintiff] to continue to suffer immediate and irreparable harm due 15 to the loss of current and future subscribers that would be drawn to Defendant[s’] free 16 programming services instead of to [Plaintiff’s] legitimate KOCOWA® service.” (Id. 17 ¶ 6.) This is sufficient to establish both the irreparability and immediacy of the harm that 18 Plaintiff will suffer in the absence of a TRO. Disney Enterprises, Inc. v. VidAngel, Inc., 19 869 F.3d 848, 866 (9th Cir. 2017) (affirming district court’s finding that second Winter 20 factor was satisfied in copyright infringement action, even though “damages could be 21 calculated based on [lost] licensing fees,” because other forms of harm caused by the 22 challenged conduct, including “loss of goodwill,” “cannot readily be remedied with 23 damages”). Additionally, the declaration from Plaintiff’s counsel explains why the contact 24 information associated with the one known Defendant, James Marque, appears to be false 25 and why the contact information for the remaining Defendants is currently unknowable. 26 (Doc. 22-1 ¶¶ 6-8.) These details provide an additional reason why Plaintiff should not be 27 required to wait until “the adverse party can be heard in opposition” before obtaining relief. 28 Turning to the merits, the first Winter factor addresses the likelihood of success on 1 the merits. The declarations from Joo and Plaintiff’s counsel adequately establish that 2 Plaintiff “licenses media content from . . . the three largest broadcast networks in Korea” 3 and “is the exclusive licensee of the United States distribution rights to over 1,100 different 4 programs, which it distributes via its KOCOWA® service” (Doc. 22-1 ¶ 2) and that “many 5 of the same programs that are exclusively licensed to [Plaintiff] for streaming via its 6 KOCOWA® service . . . are often available on the webpages resolving from and associated 7 with each of the Domain Names.” (Doc. 4 ¶ 4.) Thus, for purposes of the TRO request, 8 Plaintiff has established a likelihood of success on the merits of its copyright infringement 9 claim against Defendants. Disney Enterprises, 869 F.3d at 856 (“To establish direct 10 copyright infringement, the Studios must (1) show ownership of the allegedly infringed 11 material and (2) demonstrate that the alleged infringers violate at least one exclusive right 12 granted to copyright holders under 17 U.S.C. § 106.”) (citations omitted); Righthaven LLC 13 v. Hoehn, 716 F.3d 1166, 1170 (9th Cir. 2013) (“[I]f a copyright owner grants an exclusive 14 license of particular rights, only the exclusive licensee and not the original owner can sue 15 for infringement of those rights.”). 16 The second Winter factor addresses the likelihood of irreparable harm in the absence 17 of preliminary relief. As noted, the Joo declaration states that Defendants’ “continued 18 uploading of Korean programming exclusively licensed to [Plaintiff] will cause [Plaintiff] 19 to continue to suffer immediate and irreparable harm due to the loss of current and future 20 subscribers that would be drawn to Defendant[s’] free programming services instead of to 21 [Plaintiff’s] legitimate KOCOWA® service.” (Doc. 4 ¶ 6.) As discussed, this is sufficient 22 to establish the likelihood of irreparable harm even though a portion of Plaintiff’s harm 23 (i.e., lost licensing fees) could presumably be addressed through monetary damages. 24 Disney Enterprises, 869 F.3d at 866. 25 The third Winter factor addresses the balance of equities. The balance tips 26 overwhelmingly in Plaintiff’s favor here, where (at least on this record) Plaintiff is an 27 innocent victim of copyright infringement while Defendants are calculated infringers who 28 have taken steps to hide their identities. 1 The fourth Winter factor addresses the public interest. This factor favors Plaintiff 2 for the same reasons. Disney Enterprises, 869 F.3d at 867 (“[A]s the district court 3 concluded, ‘the public has a compelling interest in protecting copyright owners’ 4 marketable rights to their work and the economic incentive to continue creating television 5 programming’ . . . .”). 6 Finally, the Court agrees with Plaintiff (Doc. 22 at 17) that a bond is unnecessary 7 here. However, to the extent Plaintiff seeks a TRO against Defendants that will remain in 8 effect “until further notice” (Doc. 22-3 at 1), that request is denied. Under Rule 65(b)(2), 9 a TRO “expires at the time after entry—not to exceed 14 days—that the court sets, unless 10 before that time the court, for good cause, extends it for a like period or the adverse party 11 consents to a longer extension.” Thus, as to Defendants, the Court sets the time for 12 expiration at 14 days. See generally 2 Gensler, Federal Rules of Civil Procedure, Rules 13 and Commentary, Rule 65 (2022) (“As initially entered, a TRO is limited to a maximum 14 of 14 days.”). 15 Pursuant to Rule 65(b)(3), “the motion for a preliminary injunction must be set for 16 hearing at the earliest possible time, taking precedence over all other matters except 17 hearings on older matters of the same character.” As a practical matter, the hearing cannot 18 be set until the identities and contact information for Defendants are ascertained and notice 19 of the preliminary injunction motion is given to Defendants. Thus, Plaintiff is ordered to 20 inform the Court immediately each time a Defendant’s identity and contact information are 21 ascertained and notice is given. 22 II. Stipulation As To Namecheap 23 In addition to seeking to compel Defendants to disable public access to their 24 respective Domain Names, Plaintiff also asks the Court to require Namecheap to “promptly 25 upon receipt of a copy of this Order disable public access to and place a registry hold on 26 [the domain names of GOPLAY.PW, SONAGITV.LIVE, KOTBC.COM, 27 YEWOOTV.COM, TV25.CO, and SAFETV-ONLINE.COM] until further notice.” (Doc. 28 22-3 at 2.) In support of this request, Plaintiff’s counsel explains in his declaration that he 1 engaged in correspondence with representatives from Namecheap following the issuance 2 of the August 16, 2024 order and that Namecheap eventually “stipulate[d] that it will 3 comply with any orders issued by the Court regarding the domain names at issue, even if 4 it is not named as a party to the action.” (Doc. 22-1 ¶¶ 14-17.) Namecheap has 5 memorialized that agreement in a written stipulation. (Doc. 22-2 at 14.) 6 Under the circumstances and in light of Namecheap’s actual awareness of this action 7 and willingness to be bound, the Court sees little harm in binding Namecheap. Because 8 Namecheap has expressly stipulated that it “will comply with any order” the Court issues 9 that would require Namecheap “to act or refrain from acting with regard to the domain 10 names at issue in this action,” it is clear that a preliminary injunction hearing is unnecessary 11 as to Namecheap. Because the “underlying purpose” of a TRO is “preserving the status 12 quo and preventing irreparable harm just so long as is necessary to hold a hearing,” Granny 13 Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda 14 Cnty., 415 U.S. 423, 439 (1974), it follows that there would be no purpose in issuing a 15 TRO as to Namecheap. See also 2 Gensler, supra, Rule 65 (“It is important to remember 16 that the purpose of a TRO is to prevent any irreparable harm that might occur before the 17 court is able to hold a properly noticed hearing on whether to grant a preliminary 18 injunction.”). Namecheap’s stipulation signifies that it does not intend to contest the 19 applicability of the Winter factors or the issuance of a preliminary injunction. Thus, there 20 is no justification for a TRO and no impediment to issuance of a preliminary injunction as 21 to Namecheap at this juncture. 22 III. Expedited Discovery 23 At the outset of this case, Plaintiff filed a motion for permission to engage in 24 “limited, expedited discovery to identify the owners (i.e., the registrants) of the domain 25 names GOPLAY.PW, SONAGITV.LIVE, KOTBC.COM, YEWOOTV.COM, and 26 TV25.CO . . . , which are at the heart of this lawsuit.” (Doc. 6 at 1.) On August 16, 2024, 27 the Court granted that motion. (Doc. 17.) 28 Plaintiff now requests for an order “permitting limited, expedited discovery as to 1 Vautron Rechenzentrum AG, registrar of record for TV25.INFO to determine the identity 2 of the Defendant unknown registrant of TV25.INFO.” (Doc. 22 at 17.) This request is 3 granted for the same reason as the previous request—it simply expands the scope of the 4 authorized expedited discovery to encompass one more domain name. 5 Accordingly, 6 IT IS ORDERED that Plaintiff’s request for an ex parte TRO (Doc. 22) is granted 7 as to Unknown Registrant of GOPLAY.PW, Unknown Registrant of SONAGITV.LIVE, 8 Unknown Registrant of KOTBC.COM, Unknown Registrant of YEWOOTV.COM, 9 Unknown Registrant of TV25.CO, Unknown Registrant of TV25.INFO, and James 10 Marque, the registrant of SAFETV-ONLINE.COM (collectively, “Defendants”). 11 IT IS FURTHER ORDERED that Defendants, and those in active concert with 12 Defendants, shall promptly upon receipt of a copy of this Order disable public access to 13 their respective domain name(s) until further notice. 14 IT IS FURTHER ORDERED that Defendant Unknown Registrant of 15 KOTBC.COM, and those in active concert therewith, shall promptly upon receipt of a copy 16 of this Order disable public access to the Telegram account @kotbccom. 17 IT IS FURTHER ORDERED that Defendant Unknown Registrant of TV25.CO 18 and Defendant Unknown Registrant of TV25.INFO, and those in active concert therewith, 19 shall promptly upon receipt of a copy of this Order disable public access to the Telegram 20 account @tv25_info. 21 IT IS FURTHER ORDERED that this TRO shall expire after 14 days unless it is 22 extended for good cause or by stipulation. 23 IT IS FURTHER ORDERED that Plaintiff shall inform the Court immediately 24 each time a Defendant’s identity and location are ascertained and notice is sent. 25 IT IS FURTHER ORDERED that Plaintiff’s request for a preliminary injunction 26 (Doc. 22) is granted as to nonparty Namecheap Inc., per the parties’ stipulation (Doc. 22- 27 2 at 14). Namecheap, Inc. shall promptly upon receipt of a copy of this Order disable 28 public access to and place a registry hold on the domain names of GOPLAY.PW, SONAGITV.LIVE, KOTBC.COM, YEWOOTV.COM, TV25.CO, and SAFETV- || ONLINE.COM until further notice. 3 IT IS FURTHER ORDERED that Plaintiff may conduct limited, expedited 4|| discovery directed to Vautron Rechenzentrum AG for the purpose of learning the identity 5 || as to the registrant of the domain name TV25.INFO. 6 IT IS FURTHER ORDERED that Plaintiffs request for a preliminary injunction 7|| (Doc. 22) as to Defendants remains pending and shall remain an active motion on the 8 || docket. A hearing shall be set at the earliest possible time. 9 Dated this 9th day of September, 2024. 10 11 Lom ee” 12 f □□ □□ Dominic W. Lanza 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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