Nintendo of America Inc v. Minh, No. 2:2020cv01707 - Document 18 (W.D. Wash. 2021)

Court Description: FINAL JUDGMENT AND PERMANENT INJUNCTION re Plaintiff's 16 Motion for Default Judgment. Defendant and those with actual notice of this Order shall within three (3) business days of receipt of this Order disable and cease providing service s for any vendor accounts that engage in the advertisement and/or sale of Defendant's circumvention device (s). The Court awards $2,500 of statutory damages. Within thirty (30) days after service of judgment with notice of entry thereof, Defendant shall file with the Court and serve upon Nintendo a written report under oath setting forth in detail the manner in which Defendant has complied with this Order. Signed by Judge Ricardo S. Martinez. (PM)

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Nintendo of America Inc v. Minh Doc. 18 1 2 3 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 5 6 NINTENDO OF AMERICA INC., vs. 8 9 LE HOANG MINH, d/b/a WINMART Defendant. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NO. 2:20-cv-01707-RSM-JRC _____________________ FINAL JUDGMENT AND PERMANENT INJUNCTION Plaintiff, 7 The Clerk of this Court, having previously entered default against Defendant Le Hoang Ming, d/b/a Winmart (“Defendant”), Dkt. 15, and this matter having come before the Court on Plaintiff Nintendo of America Inc.’s Motion for Entry of Default Judgment (“Motion”), Dkt. 16, against Defendant, the Court has determined that Nintendo’s Motion should be GRANTED. Therefore, pursuant to the Digital Millennium Copyright Act’s (DMCA) anti-trafficking provisions under 17 U.S.C. § 1201 and abuse of the DMCA’s counter-notification system under 17 U.S.C. § 512(f), and this Court’s inherent equitable powers, IT IS THEREFORE ORDERED: 1. A permanent injunction is entered against Defendant, its officers, agents, servants, employees, attorneys, and all other persons or entities in active concert, participation, or privity with any of these parties, shall be permanently enjoined and restrained from: A. Circumventing or assisting to circumvent any technological security measures that effectively controls access to Nintendo’s copyrighted works; 24 25 Final Judgment and Permanent Injunction No. 2:20-cv-01707-RSM-JRC -1- Pirkey Barber PLLC 1801 E. 6th Street, Suite 300 Austin, TX 78702 (512) 322-5200 Dockets.Justia.com 1 B. Manufacturing, offering for sale, selling, providing, distributing, exporting, 2 importing, shipping, or otherwise trafficking in, into the United States or to 3 customers located in the United States, directly or indirectly, any and all products, 4 services, devices, components or parts thereof that are primarily designed or 5 produced for circumventing the technological security measures for Nintendo’s 6 consoles, products and protected works (“circumvention devices”); and 7 C. Offering for sale, selling, providing, distributing, exporting, importing, or 8 shipping to any persons or other entities located in the United States any 9 circumvention device(s), including specifically Defendant’s RCM Loader 10 product, or any circumvention device(s) identical in function offered by 11 Defendant, under any name; and 12 D. Directly or indirectly infringing, or causing, enabling, facilitating, encouraging, 13 promoting, and inducing or participating in the infringement of, any of Nintendo’s 14 copyrighted works, whether now in existence or hereafter created. 15 2. It is further ORDERED all other persons or entities in active concert, 16 participation, or privity with Defendant, including specifically any seller or online marketplaces 17 who receive actual notice of this Order, shall immediately cease and permanently refrain from 18 offering for sale, selling, providing, distributing, exporting, importing, or shipping to any persons 19 or other entities located in the United States Defendant’s circumvention device(s), including 20 specifically Defendant’s RCM Loader product, or any circumvention device(s) identical in 21 function offered by Defendant, under any name. 22 3. Defendant and those with actual notice of this Order shall within three (3) business 23 days of receipt of this Order disable and cease providing services for any vendor accounts that 24 engage in the advertisement and/or sale of Defendant’s circumvention device(s), including 25 Final Judgment and Permanent Injunction No. 2:20-cv-01707-RSM-JRC -2- Pirkey Barber PLLC 1801 E. 6th Street, Suite 300 Austin, TX 78702 (512) 322-5200 1 specifically Defendant’s RCM Loader product, or any device or electronic material that violates 2 Nintendo’s rights under the DMCA. 4. 3 It is further ORDERED under 17 U.S.C. § 1203 Nintendo may authorize the 4 seizure, impoundment, and destruction of all circumvention devices, all copies of software 5 accompanying the RCM Loader, and all other electronic material or physical devices—including 6 any hard drives or other electronic storage devices containing such material—that violate 7 Nintendo’s rights under the DMCA or infringe upon copyrights owned or exclusively licensed 8 by Nintendo. 5. 9 10 17 U.S.C. § 1203(c)(3)(a). 6. 11 12 It is further ORDERED that the Court awards $2,500 of statutory damages under No bond or other security is required in connection with this Final Judgment and Permanent Injunction. 7. 13 For three years from the date of entry of final judgment, the Court shall retain 14 jurisdiction for the purpose of modifying or interpreting this Order, the enforcement thereof or 15 the punishment of any violations thereof. See 17. U.S.C. § 1203(c)(4) (providing that courts may 16 award triple damages upon finding that a person violated § 1201 or § 1202 within three years 17 after entry of final judgment). 8. 18 Within thirty (30) days after service of judgment with notice of entry thereof, 19 Defendant shall file with the Court and serve upon Nintendo a written report under oath setting 20 forth in detail the manner in which Defendant has complied with the preceding paragraphs of this 21 Order. 22 23 24 25 9. Any violation of this Order may be punishable as a contempt of Court, in addition to any and all other remedies available at law or in equity. 10. Nintendo may serve this judgment electronically on Defendant by sending it to the same email address listed in this Court’s order authorizing electronic service of process. Final Judgment and Permanent Injunction No. 2:20-cv-01707-RSM-JRC -3- Pirkey Barber PLLC 1801 E. 6th Street, Suite 300 Austin, TX 78702 (512) 322-5200 1 11. With no remaining claims to adjudicate in this matter, final judgment as to liability 2 in this action shall be entered against Defendant and in favor of Nintendo on all of the claims set 3 forth in Nintendo’s Complaint. 4 DATED this 15th day of April, 2021. 5 6 A 7 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 DATED April 15, 2021 Presented by: s/ Christopher Weimer Christopher Weimer (pro hac vice forthcoming) Travis W. Wimberly (pro hac vice forthcoming) Pirkey Barber PLLC 1801 E. 6th St., Suite 300 Austin, TX 78702 (512) 322-5200 (512) 322-5201 (fax) cweimer@pirkeybarber.com twimberly@pirkeybarber.com 13 14 15 16 17 18 24 s/ Chelsey L, Mam Michael Rosenberger Chelsey L. Mam Gordon Tilden Thomas & Cordell LLP One Union Square 600 University St., Suite 2915 Seattle, WA 98101 (206) 467-6477 (206) 805-3161 (fax) mrosenberger@gordontilden.com cmam@gordontilden.com 25 Attorneys for Plaintiff Nintendo of America, Inc. 19 20 21 22 23 Final Judgment and Permanent Injunction No. 2:20-cv-01707-RSM-JRC -4- Pirkey Barber PLLC 1801 E. 6th Street, Suite 300 Austin, TX 78702 (512) 322-5200

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