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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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Stephen L. Cohen IN THE UNITED STATES DISTRICT COURT
This matter comes before the Court on plaintiff Federal Trade Commission's complaint for an injunction and other equitable relief, and its ex parte application pursuant to Fed. R. Civ. P. 65(b) for a Temporary Restraining Order ("TRO"). The TRO and Order to Show Cause having been granted ex parte and the Complaint and summons having been served on the defendants, and the Court having considered all arguments, pleadings, memoranda, declarations, and other exhibits filed with respect to said application, and now being fully advised of the premises, finds: 1. This Court has jurisdiction of the subject matter of this case, and there is good cause to believe it will have jurisdiction over all parties.2. There is good cause to believe that the defendants have engaged in and are likely to continue to engage in acts and practices that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and, therefore, the Commission is likely to prevail on the merits of this action. 3. There is a substantial likelihood that, absent the continuation of the temporary injunction, defendants will destroy or conceal their records, thereby defeating the possibility of effective final relief. 4. Weighing the equities and considering the Commission's likelihood of success in its causes of action, this Preliminary Injunction is in the public interest. ORDER Definitions A. "Document" is synonymous in meaning and equal in scope to the usage of the term in Federal Rule of Civil Procedure 34(a), and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and other data compilations from which information can be obtained and translated, if necessary, through detection devices into reasonably usable form. A draft or non-identical copy is a separate document within the meaning of the term. B. "Defendants" mean Carlos Pereira ("Pereira"), doing business as atariz.com, PremiaNet Corp, Atari Corp, piratelynx.com, and any other domain name registered by him, W.T.F.R.C. Pty Ltd ("WTFRC"), doing business as Kewl Photographies, Kool Images, taboosisters.com, taboohardcore.com, tabooanimals.com, and any other domain name registered by it, Guiseppe Nirta ("Nirta"), and each of their successors, assigns, officers, agents, servants, employees, subsidiaries or affiliates, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any entity, corporation, subsidiary, division, or other device, unless specified otherwise. C. "Internet" means a worldwide system of linked computer networks that use a common protocol to deliver and receive information. The "Internet" includes, but is not limited to, the following forms of electronic communication: electronic mail and mailing lists, the World Wide Web ("Web"), bulletin boards and newsgroups, chat groups, remote computer access (telnet), and file transfer protocol (ftp). D. "URL" is an abbreviation for Uniform Resource Locator. Each Web page and Web site has a distinct URL, such as www.atariz.com or www.atariz.com/c_141.htm, that serves as a unique Internet address for that Web site or Web page. E. A "Web site" is a set of electronic documents, usually a home page and subordinate pages, readily viewable on a computer by anyone with access to the Internet, standard software, and knowledge of the Web site's URL. F. A "Web page" is a single electronic document within a Web site, readily viewable on a computer by anyone with access to the Internet, standard software, and knowledge of the Web page or Web site's URL. Web site visitors generally first link to its "home page," which is a Web page that serves as an index, or gateway, to the rest of the Web site's contents. G. A "search engine" is a software program that searches Internet documents for specified keywords and returns addresses and descriptions of documents where the keywords are found. The term is often used to describe specific Web sites like AltaVista, Excite, and Lycos, which enable consumers to search for documents on the Internet or in newsgroups. H. A "meta tag" is a set of words or phrases within a Web page that, among other things, summarizes the contents of that Web page. Meta tags contain such information as a general description of the page, keywords for search engines that describe the contents of the Web page, and copyright information. Typically, meta tags are part of the source code of a Web page and are not readily visible to Internet users. Meta tags are used by search engines to index Web sites for the purpose of comparing sites to an Internet user's search request. I. PROHIBITED BUSINESS ACTIVITIES IT IS THEREFORE ORDERED that, in connection with the advertising, promotion, offering for sale, sale or provision of any goods or services on the Internet, the Defendants are hereby temporarily restrained and enjoined from: A. Copying and posting the Web pages of any unrelated party without authorization; II. IT IS FURTHER ORDERED that, pending final resolution of this matter, any party hosting any Web pages or Web sites for Defendants shall: A. Immediately take whatever steps may be necessary to ensure that Web pages or Web sites operated, in whole or in part, under the names atariz.com, piratelynx.com, taboosisters.com, taboohardcore.com, tabooanimals.com, shemen.com, and extreme-boys.com cannot be accessed by the public; III. IT IS FURTHER ORDERED that, pending final resolution of this matter, Network Solutions, Inc., and any other domain name registrar shall: A. Immediately suspend the registration of atariz.com, piratelynx.com, taboosisters.com, taboohardcore.com, tabooanimals.com, shemen.com, and extreme-boys.com; and IV. RECORD KEEPING PROVISIONS IT IS FURTHER ORDERED that Defendants are hereby restrained and enjoined from: A. Destroying, erasing, mutilating, concealing, altering, transferring, or otherwise disposing of, in any manner, any: books; records; "verification" or other audio or video tape recordings; computer tapes, discs or other computerized records; accounting data; personal and business checks (fronts and backs); correspondence; forms; advertisements; brochures; manuals; banking records; customer lists; customer files; invoices; telephone records; ledgers; payroll records; scripts; postal receipts; appointment books; income tax returns; or other documents of any kind in their possession, custody, or control; and V. SERVICE OF ORDER IT IS FURTHER ORDERED that copies of this Order may be served by any means, including facsimile transmission or electronic mail, upon any entity or person that may have possession, custody, or control of any documents of the Defendants, or that may be subject to any provision of this Order. VI. DISTRIBUTION OF ORDER BY DEFENDANTS IT IS FURTHER ORDERED that Defendants shall immediately provide a copy of this Order to each affiliate, subsidiary, division, successor, assign, officer, director, employee, independent contractor, Web master, agent, attorney, and representative of any Defendant, and shall, within ten (10) days from the date of entry of this Order, provide the Commission with a sworn statement that Defendants have complied with this provision of the Order, which statement shall include the names and addresses of each such person or entity who received a copy of the Order. VII. CORRESPONDENCE WITH AND NOTICE TO PLAINTIFF IT IS FURTHER ORDERED that for the purposes of this Order, all correspondence and pleadings to the Commission shall be addressed to:
VIII. RETENTION OF JURISDICTION IT IS FURTHER ORDERED t hat this Court shall retain jurisdiction of this matter for all purposes.SO ORDERED, this ___ day of _____________, 1999, at ___.m. _______________________________ Eastern District of Virginia Alexandria Division
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