Universal City Studios, Inc et al v. Reimerdes, et al - Consent Judgment Against Roman Kazan

17 March 2000
Source: Fax from Roman Kazan.

Roman Kazan has substantial information on the circumstances leading to this judgment. He may be telephoned at: (212) 888-8780, ext. 888. E-mail: roman@escape.com

Also see information at: http://www2.escape.com/dvdpress.html

This order was signed on March 17, 2000 by U.S. District Judge Lewis Kaplan, Southern District of New York. See: http://www.nysd.uscourts.gov/courtweb/

[6 pages]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS, INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,
Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; and ROMAN KAZAN,
Defendants.
_____________________________________________
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00 Civ. 0277 (LAK)(RLE)

CONSENT JUDGMENT AGAINST
DEFENDANT ROMAN KAZAN

WHEREAS, this action was commenced on January 14, 2000 with the filing of a complaint alleging violations of the circumvention provisions of the United States Copyright Act, 17 U.S.C. § 1201 et seq. The Plaintiffs are the major motion picture studios in the United States. Defendant Roman Kazan represents that he is the president of Kazan Corporation which operates the Internet Service Provider ("ISP") Escape.com, which, in turn, operates the domain servers escape.com and free.escape.com. Escape.com, escape.com and free.escape.com are collectively referred herein as "Escape." Roman Kazan, Kazan Corporation and Escape are collectively referred herein as "Kazan." Kazan's principal place of business is at 16 East 55th Street, New York, New York 10022. This court has jurisdiction over Kazan, and venue is proper in this district;

WHEREAS, when this action was commenced the web site www.krackdown.com (the "Krackdown site") had on a software utility referred to as "DeCSS," which decrypts the CSS encryption system that protects against unauthorized access and copying of Plaintiffs' copyrighted motion pictures released in the Digital Versatile Disc ("DVD") format. Roman Kazan was listed as the technical contact for the Krackdown site on the registration statement with Network Solutions, based on its then applicable practices, and the Krackdown site was hosted by Escape.com;

WHEREAS, on January 20, 2000, after full briefing and a hearing, the Court issued a preliminary injunction enjoining Roman Kazan and the other defendants, as well as their respective officers, agents, servants, employees and attorneys, from posting on any Internet web site (or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in) DeCSS or any other unauthorized circumvention device within the meaning of 17 U.S.C. § 1201(a)(2);

WHEREAS, Roman represents that Escape is an ISP and that neither he nor his company, Kazan Corporation, had any participation in, or prior knowledge of, the posting of DeCSS at the Krackdown site appearing on the domain servers owned and operated by Kazan;

WHEREAS Roman Kazan wishes to reach a consensual resolution of this matter without the cost, disruption, and uncertainty associated with further litigation; and

WHEREAS Plaintiffs are willing to enter into this Consent Judgment based upon the truthfulness of Roman Kazan's representation and his entry into, and full compliance with, this Consent Judgment;

THEREFORE, Plaintiffs and Kazan hereby stipulate and agree, and the Court hereby ORDERS, that:

1. Kazan, their agents, servants, employees, and all other persons in active concert or privity or in participation with them are hereby permanently enjoined from:

(a) posting on any Internet web site, linking to, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in DeCSS, and
(b) posting on any Internet web site, linking to, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that:
(i) is primarily designed for the purpose of circumventing, or circumventing the protection afforded by, the Contents Scramble System ("CSS"), or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof,
(ii) has only limited commercially significant purpose or use other than to circumvent, or to circumvent the protection afforded by, CSS, or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' right to control whether an end use can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof, or
(iii) is marketed by Defendants and/or others acting in concert with the knowledge of its use in circumventing, or circumventing the protection afforded by, the Contents Scramble System ("CSS"), or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof.

(a) With respect to Kazan's activities in the ownership or operation of any ISP, including but not limited to Escape, upon receiving written notice from or on behalf of any of the Plaintiffs in accordance with the provisions of paragraph 2(b) below, Kazan shall expeditiously disable access to or remove any of the matter prohibited by paragraph 1 above on any system, network, or domain server over which Kazan or any of the persons identified in paragraph 1 exercises control. For the purposes of this Consent Judgment, "expeditiously" disabling access to or removing prohibited matter shall mean immediately upon receipt of notice under this paragraph 2, and in no case later than the end of the business day upon which such notice is received, unless the notice specified herein is received after the end of the business day, in which case Kazan shall disable access or remove the prohibited matter before noon of the next business day. A "business day" shall mean any day on which Escape or any other ISP owned or operated by any of the parties identified in paragraph 1 above is conducting business, and includes weekends and holidays.
(b) Written notice to Kazan is deemed sufficiently made (i) at the time sent by e-mail to Kazan at mpaanotice@escape.com, (ii) at the time sent to Kazan by fax to (212) 888-5646, or (iii) at 11:30 a.m. of the business day after it is sent by overnight mail to Kazan Corp., Attention: Legal Matters, 16 East 55th Street, New York, New York 10022. Kazan may designate a substitute email address, fax number, or overnight mail address by providing it in writing to counsel for Plaintiffs at the following address: Motion Picture Association of America, Inc., 15503 Ventura Boulevard, Encino, California 91436, attention: Mark D. Litvack, Esq.

3. Based upon Kazan's representations and future compliance with this Consent Judgment, Plaintiffs shall refrain from seeking any monetary relief, including costs or attorneys' fees, from Kazan in connection with this action; provide, however, Plaintiffs may reopen these proceedings and seek actual, statutory, or other damages, including costs and attorneys' fees, incurred in this action, without limiting any other rights or remedies Plaintiffs may have, upon a showing by Plaintiffs that: (a) Kazan has violated this Consent Judgment, including but not limited to, by failing to disable access to or remove any of the matter prohibited by paragraph 1 in accordance with the provisions of this Consent Judgment, or (b) that Kazan's representations are inaccurate.

4. Nothing in this Consent Judgment shall be construed to waive, limit, or affect any right, claim, or remedy Plaintiffs may have against any other person, including but not limited to any other defendants in this action or any other person who may be liable for posting DeCSS on the Krackdown web site. The complaint in this action shall be deemed amended by this Consent Judgment to include, as additional defendants, Kazan Corporation, Escape.com, and any d/b/a of Kazan.

5. Except to the extent modified herein as to Kazan, the preliminary injunction remains in full force and effect as to all remaining defendants.

6. Kazan has had the opportunity to engage independent legal counsel in connection with this matter and the entry of this Consent Judgment.

7. This Court shall retain jurisdiction to enforce, implement, or construe this Consent Judgment. Plaintiffs and Kazan consent to jurisdiction and venue in this Court for any related proceedings. Plaintiffs and Kazan waive their respective rights to notice and appeal of this Consent Judgment and consent to its immediate entry in accordance with its terms.

Dated: March ___, 2000

SO ORDERED:
______________________
United States District Judge

Stipulated and Agreed:

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS, INC.;
TRISTAR PICTURES, INC.;
COLUMBIA PICTURES INDUSTRIES, INC.;
TIME WARNER ENTERTAINMENT CO., L.P.;
DISNEY ENTERPRISES, INC.; AND
TWENTIETH CENTURY FOX FILM CORPORATION,
by their attorneys, PROSKAUER ROSE LLP

____________________________
William M. Hart, Esq.
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036

ROMAN KAZAN, individually and in his capacity
as president of Kazan Corporation d/b/a Escape.com

____________________________

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