Case3:10-cv-03909-VRW Document33 Filed10/05/10 Page1 of 7

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7 IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA

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10 SONY COMPUTER ENTERTAINMENT No C 10-3909 VRW
AMERICA,
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Plaintiff, ORDER ON PLAINTIFF’S EX PARTE
For the Northern District of California

12 APPLICATION FOR A TEMPORARY

United States District Court

v RESTRAINING ORDER
13
ZOOMBA LDC;
14 WWW.SHOPPSJAILBREAK.COM; VLAD
GAZOUNE, individually and doing
15 business as ZOOMBA LDC and
WWW.SHOPPSJAILBREAK.COM; THAHN
16 NGUYGEN, individually and doing
business as USATECHCITY, LTD;
17 ARTHUR BATES II, individually and
doing business as PSP PIT STOP;
18 TOM NOOKER, individually and
doing business as
19 WWW.BUYPS3JAILBREAK.WEBS.COM;
ALEX ESQUIVEL, individually and
20 doing business as NDSGAMER; BIN
LE ZHONG aka BEN LEE,
21 individually and doing business
as WWW.PS3BREAKONLINE.COM; and
22 FAI KING FONG, individually and
doing business as
23 WWW.PS3BREAKONLINE.COM; and
HUANRAN LEE, individually and
24 doing business as
WWW.GETPS3BREAK.COM; and DOES 10
25 through 100,
26 Defendants.
27 ______________________________/
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1 I
2 On August 31, 2010, plaintiff Sony Computer Entertainment
3 America LLC (“SCEA”) filed a complaint against defendants Zoomba
4 LDC, ShopPSjailbreak.com and doe defendants. Doc #1. The court
5 permitted limited discovery to allow plaintiffs to identify the doe
6 defendants. Doc #22. On October 1, 2010, SCEA filed its First
7 Amended Complaint (“FAC”). Doc #23. In its FAC, SCEA substituted
8 Vlad Gazoune, individually and doing business as Zoomba LDC and
9 www.shoppsjailbreak.com (“shoppsjailbreak.com”), Thahn Nguyen,
10 individually and doing business as USATechCity, Ltd
11 (“USATechCity”), Arthur Bates II, individually and doing business
12 as PSP Pit Stop (“PSP Pit Stop”), Tom Nooker, individually and
13 doing business as www.BuyPS3Jailbreak.webs.com,
14 ("BuyPS3Jailbreaks.webs.com"), Alex Esquivel, individually and
15 doing business as www.ndsgamer.com (“NDSgamer”), Bin Li Zhong, also
16 known as Ben Lee, individually and doing business as
17 www.ps3breakonline.com, Fai King Fong, individually and doing
18 business as www.ps3breakonline (“ps3breakonline.com”), and HuanRan
19 Lee, individually and doing business as www.getps3break.com
20 (“GetPS3break.com”) as defendants in place of doe defendants 1-9.
21 SCEA alleges that defendants sold, offered to the public and
22 trafficked in circumvention devices known as, for example, “PS3
23 Break,” “PS Jailbreak,” “PS3 Modchip,” “PS3 Free Revolution
24 Adapter,” “PS3 Key,” “PS3 Yes!” and “PS3break.com” (collectively,
25 “PS3 Jailbreak devices”) along with related backup manager software
26 known as, for example, “SDK 1.92.” SCEA alleges that defendants
27 induced copyright infringement of SCEA’s copyrighted video game
28 software and other works in violation of the Copyright Act, 17 USC

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1 § 501 et seq, including the Digital Millennium Copyright Act

2 ("DMCA"), 17 USC § 1201 et seq; that defendants
3 shoppsjailbreak.com, USATech City, BuyPS3Jailbreak.webs.com and
4 ps3breakonline.com infringed SCEA’s PlayStation®3 programmer tools
5 in violation of the Copyright Act, 17 USC § 501 et seq; and that
6 defendants violated federal trademark and unfair competition laws,
7 15 USC §§ 1114, 1125 and California law prohibiting unfair
8 competition and unfair business practices, Cal Bus & Prof Code §
9 17200 et seq.
10 On October 1, 2010, pursuant to FRCP 65, Civ LR 65-1 and
11 7-10, SCEA moved ex parte on its claims for violation of the DMCA
12 and federal trademark and unfair competition law against defendants
13 USATechCity, PSP Pit Stop, BuyPS3Jailbreak.webs.com, NDSgamer and
14 ps3breakonline.com for a temporary restraining order (“TRO”), an
15 order to show cause why a preliminary injunction should not issue
16 and an order of impoundment pursuant to 17 USC § 1203(b)(2). Doc
17 #24. In support of its motion, SCEA submitted a supporting
18 memorandum and declarations of John Hu, Doc #25, Jennifer Y Liu,
19 Doc #26, and Ryan T Bricker, Doc #27. SCEA served defendants with
20 the application for a TRO and supporting papers on October 2, 2010.
21 Doc #32.
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23 II
24 The purpose of a TRO is “preserving the status quo and
25 preventing irreparable harm just so long as is necessary to hold a
26 hearing [on the preliminary injunction application], and no
27 longer.” Granny Goose Foods, Inc v Brotherhood of Teamsters & Auto
28 Truck Drivers, 415 US 423, 439 (1974). A TRO is an extraordinary

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1 remedy; plaintiff has the burden of proving the propriety of such a

2 remedy. See Mazurek v Armstrong, 520 US 968, 972 (1997); Granny
3 Goose Foods at 442.
4 The showing required for a TRO mirrors that required for
5 a preliminary injunction. Stuhlbarg Int’l Sales Co, Inc v John D
6 Brush & Co, Inc, 240 F3d 832, 839 n7 (9th Cir 2001); Lockheed
7 Missile & Space Co, Inc v Hughes Aircraft Co, 887 F Supp 1320, 1323
8 (ND Cal 1995). Thus, plaintiff “must establish that [it] is likely
9 to succeed on the merits, that [it] is likely to suffer irreparable
10 harm in the absence of preliminary relief, that the balance of
11 equities tips in [its] favor, and that an injunction is in the
12 public interest.” Winter v NRDC, Inc, --- US ----, 129 SCt 365,
13 374 (2008). In lieu of establishing that it is likely to succeed
14 on the merits, plaintiff may secure preliminary injunctive relief
15 by raising “serious questions going to the merits” and showing “the
16 balance of hardships tips sharply in their favor.” Alliance for
17 Wild Rockies v Cottrell, --- F3d ----, 2010 WL 3665149, *5 (9th Cir
18 2010). Such relief, however, remains an “extraordinary remedy”
19 that “may only be awarded upon a clear showing that the plaintiff
20 is entitled to [it].” Winter, 129 SCt at 375-76 (citation
21 omitted).
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23 III
24 Having considered all the papers and arguments, the court
25 finds that SCEA has established that it is likely to succeed on the
26 merits of its claims for violation of the DMCA and federal
27 trademark law and that it will suffer irreparable harm unless
28 defendants’ violations are enjoined. The court also finds that a

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1 TRO is necessary to prevent immediate and irreparable injury to

2 SCEA before the hearing on the order to show cause can be held and
3 to preserve the status quo. The court further finds that the
4 balance of equity and interests of justice support granting such
5 relief. Accordingly, the court orders as follows:
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7 1. Defendants and their officers, employees, attorneys and
8 representatives, and all other persons or entities in
9 privity or acting in concert or participation with
10 defendants, are immediately temporarily restrained from
11 selling, offering for sale, marketing, advertising,
12 promoting, installing, distributing or otherwise
13 trafficking in circumvention devices, including but not
14 limited to any or all of the PS3 Jailbreak devices, any
15 copies or versions of backup manager or any other
16 hardware or software that bypasses technological
17 copyright protection measures in SCEA’s PlayStation®3
18 computer entertainment system;
19 2. Defendants shall preserve all communications, including
20 email communications, and other documents relating to
21 their purchase, sale, receipt or distribution of
22 circumvention devices, including but not limited to the
23 PS3 Jailbreak devices, the backup manager or any other
24 hardware or software that bypasses technological
25 copyright protection measures in SCEA’s PlayStation®3
26 computer entertainment system, and that defendants shall
27 not delete, remove, transfer or in any way dispose of
28 such communications and documents;

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1 3. This order shall be binding upon the parties to this

2 action and all other persons or entities who receive
3 actual notice of this order by personal service or
4 otherwise;
5 4. This order will be effective upon plaintiff’s posting of
6 $5000 security with the court pursuant to FRCP 65(c);
7 5. Plaintiff shall serve defendants, defendants’ resident
8 agents or counsel with a copy of this order;
9 6. This order shall remain in effect until the date the
10 hearing on the order to show cause set forth below or
11 until such further dates as set by the court or
12 stipulated to by the parties.
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14 Defendants are ORDERED to SHOW CAUSE why they should not
15 be preliminarily enjoined from selling, offering for sale,
16 marketing, advertising, promoting, installing, distributing or
17 otherwise trafficking in circumvention devices, including but not
18 limited to any or all of the PS3 Jailbreak devices, any copies or
19 versions of backup manager or any other hardware or software that
20 bypasses the copyright protection mechanisms in SCEA’s
21 PlayStation® 3 console entertainment system.
22 Defendants are further ORDERED to SHOW CAUSE why the
23 court should not issue an order pursuant to 17 USC § 1203(b)(2)
24 impounding all circumvention devices in defendants’ possession,
25 custody or control, including any or all of the PS3 Jailbreak
26 devices, any copies or versions of backup manager or any other
27 hardware or software which bypasses technological copyright
28 \\

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1 protection measures in SCEA’s PlayStation®3 computer entertainment

2 system.
3 Defendants may file a written response to this order to
4 show cause and SCEA’s motion for a preliminary injunction on or
5 before October 8, 2010 at 12 PM PDT. SCEA may file a reply on or
6 before October 12, 2010 at 9 AM PDT. The parties shall appear
7 before Judge Vaughn R Walker for a hearing on the order to show
8 cause on October 12, 2010 at 10 AM in Courtroom 6, 17th Floor, 450
9 Golden Gate Avenue, San Francisco CA 94102.
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12 IT IS SO ORDERED.
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WILLIAM H ALSUP
14 United States District Judge
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