Last month several major movie and TV show companies filed a copyright infringement lawsuit against Alejandro Galindo, the alleged operator of unlicensed IPTV provider Nitro TV, and 20 additional ‘Doe’ defendants.
Owned by Columbia, Amazon, Disney, Paramount, Warner, and Universal, the companies alleged that Nitro TV offers subscription packages consisting of thousands of “live and title-curated television channels” available twenty-four hours a day, seven days a week, throughout the United States and abroad.
Of particular interest to the entertainment companies were Nitro TV’s ’24/7′ channels and VOD service, consisting of movies and TV shows that, according to the lawsuit, could only function if their content had been unlawfully copied in advance. These included movies and TV shows including The Office, Spider-Man: Homecoming, Toy Story 3, Star Trek Beyond, Homecoming and Joker.
Citing the ‘unfair competition’ presented by Nitro’s service, the companies’ complaint alleged willful direct copyright infringement and in the event Nitro claimed that third-parties streamed the content, contributory copyright infringement, with each offense carrying maximum statutory damages of $150,000 per infringed work.
In common with most lawsuits of this type, the companies demanded preliminary and permanent injunctions not only against all of the defendants but also third-party companies acting in concert with them, such as domain registrars.
In an April 23 filing, Galindo filed a notice of non-opposition to the plaintiffs’ motion for a preliminary injunction but according to court records, did not shut down the Nitro TV service. This claim appears to be supported by numerous videos on YouTube discussing whether customers should ditch the service as soon as possible due to the lawsuit, despite it continuing to operate.
District Court Judge Stephen V. Wilson was tasked with deciding whether in advance of a trial, Nitro TV should be shut down. In an injunction handed down Monday, he sided with the entertainment companies.
“As copyright holders, Plaintiffs have the exclusive right to publicly perform the Copyrighted Works. 17 U.S.C. § 106(4),” his order reads.
“The internet streaming of full copyrighted works without authorization constitutes a violation of this exclusive right. By streaming the Copyrighted Works on Nitro TV without authorization, Defendant likely violates this exclusive right.
“Accordingly, Plaintiffs are likely to be successful on their copyright claims. Because Plaintiffs have successfully established a likelihood of success on their direct infringement claims, the Court does not reach Plaintiffs’ secondary infringement claims.”
Despite concluding that the plaintiffs are likely to be successful in their copyright infringement claims against Nitro TV, Judge Wilson notes that he was required to consider whether, in the absence of an injunction, the plaintiffs would suffer “irreparable” injury. He decided that would indeed be the case.
“Plaintiffs have shown they are likely to be irreparably harmed by the continued infringement of their copyrights. Due to the diffuse nature of streaming services, it will be difficult for Plaintiffs to discern the full extent of Defendant’s copyright violations,” he writes.
“Not only is Defendant directly infringing Plaintiffs’ copyrights, creating a financial loss to Plaintiffs, but Plaintiffs have provided evidence that the unlawfully distributed Copyrighted Works may undermine the value of Plaintiffs’ legitimate licenses. This could also lead to unquantifiable customer confusion and an overall diminution of value of the Copyrighted Works.”
Given that preliminary injunctions can have an effect on all parties in a dispute, the Judge also considered whether damage could be caused to Nitro. He found that since the operator of the service had not disputed he was infringing the entertainment companies’ rights and that illegal conduct does not merit “significant equitable protection”, no injury would be suffered by Nitro TV.
“The balance of the equities tips strongly in Plaintiffs’ favor,” his order reads.
Finally, the Judge considered whether a preliminary injunction would be in the public interest. Similarly, he found in the plaintiffs’ favor, noting that Nitro TV had offered no evidence to counter the claim that its alleged copyright infringements offered no lawful benefit to the public.
The preliminary injunction handed down Monday requires that Galindo and all individuals acting in concert, participation, or in privity with him in connection with his alleged activities, must immediately cease all direct and secondary copyright infringement related to the plaintiffs’ copyrighted works, including all public performances and reproduction.
In response to requests in the original complaint, the Judge specifically ordered Namecheap and Domain.com, the domain registrars for Tekkhosting.com and NitroIPTV.com respectively, to prevent the domains from being modified, sold, transferred or deleted.
Alongside an instruction for the domains to be disabled, the Judge ordered that current WHOIS information must be preserved alongside all evidence related to the domains’ ownership.
The preliminary injunction can be obtained here (pdf)