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Microsoft Corp. v. Does

United States District Court, E.D. Virginia, Alexandria Division

August 22, 2017

MICROSOFT CORPORATION, Plaintiff,
v.
JOHN DOES 1-2, Defendant.

          DEFAULT JUDGMENT AND ORDER FOR PERMANENT INJUNCTION

          Gerald Bruce Lee, United States District Judge

         This matter is before the Court on Plaintiff Microsoft Corporation's ("Microsoft") Motion for Default Judgment and Permanent Injunction (Dkt. No. 55) and on United States Magistrate Judge Theresa C. Buchanan's Report and Recommendation (Dkt. No. 59).

         Microsoft has established the elements of its claims pursuant to: (1) the Computer Fraud and Abuse Act (18 U.S.C. § 1030); (2) the Electronic Communications Privacy Act (18 U.S.C. § 2701); (3) the Lanham Act (15 U.S.C. §§ 1114(a)(1), 1125(a), (c)); (4) the Anticybersquatting Consumer Protection Act (15 U.S.C. § 1125(d)); and (5) the common law of trespass, unjust enrichment and conversion. Defendants have failed to appear, plead, or otherwise defend this action. Microsoft is entitled to default judgment under Rule 55(b) of the Federal Rules of Civil Procedure and a permanent injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, 15 U.S.C. § 1116(a) (the Lanham Act), and 28 U.S.C. § 1651(a) (the All-Writs Act).

         Upon consideration of United States Magistrate Judge Theresa C. Buchanan's Report and Recommendation (Dkt. No. 59), to which no objection was filed within fourteen days, and upon independent review of the record, IT IS HEREBY ORDERED that the Court adopts, as its own, the findings of fact and accepts the recommendation of United States Magistrate Judge Theresa C. Buchanan's Report and Recommendation;

         IT IS FURTHER ORDERED that in accordance with Fed.R.Civ.P. 65(b) and 53(a)(1)(C), 15 U.S.C. § 1116(a) and 28 U.S.C. § 1651(a) and the court's inherent equitable authority, good cause and the interests of justice, Microsoft's Motion for Default Judgment and Entry of a Permanent Injunction (Dkt. No. 55) is GRANTED.

         IT IS FURTHER ORDERED that Defendants are in default, and that judgment is awarded in favor of Microsoft and against Defendants.

         IT IS FURTHER ORDERED that, Defendants, Defendants' representatives, and persons who are in active concert or participation with Defendants, are permanently restrained and enjoined from: (1) intentionally accessing and sending malicious software or code to Microsoft and the protected computers and operating systems of Microsoft and Microsoft's customers, without authorization, in order to infect those computers; (2) intentionally attacking and compromising computers or computer networks of Microsoft or Microsoft's customers, to monitor the activities of the owners or users of those computers or computer networks, and to steal information from those computers or networks; (3) configuring, deploying, operating, or otherwise participating in or facilitating a command and control infrastructure, or any component or element of the command and control infrastructure at any location; (4) stealing information from Microsoft's customers; (5) misappropriating that which rightfully belongs to Microsoft, its customers, or in which Microsoft or its customers have a proprietary interest; (6) downloading or offering to download additional malicious software onto the computers of Microsoft's customers; or (7) undertaking any similar activity that inflicts harm on Microsoft, Microsoft's customers, or the public, including but not limited through the Internet domains set forth in Appendix A (Dkt. No. 55-2) or Appendix B (Dkt. No. 55-3) or any other "Strontium Domain, " as further defined below.

         IT IS FURTHER ORDERED that, Defendants, Defendants' representatives, and persons who are in active concert or participation with Defendants are permanently restrained and enjoined from using and infringing Microsoft's trademarks, trade names, service marks, or Internet Domain addresses or names to carry out the enjoined activity; (2) using in connection with Defendants' activities, products, or services any false or deceptive designation, representation or description of Defendants or of their activities, whether by symbols, words, designs or statements, which would damage or injure Microsoft or give Defendants an unfair competitive advantage or result in deception of consumers; or (3) acting in any other manner which suggests in any way that Defendants' activities, products or services come from or are somehow sponsored by or affiliated with Microsoft, or passing off Defendants' activities, products or services as Microsoft's.

         IT IS FURTHER ORDERED that Defendants shall forfeit ownership and control of all domains used to carry out the activities enjoined herein, including the domains identified at Appendix A and Appendix B, and any other "Strontium Domain, " as further defined below.

         IT IS FURTHER ORDERED, pursuant to the All Writs Act (28 U.S.C. § 1651) that the terms of this Permanent Injunction shall be enforced against the Defendants, Defendants' representatives, and persons who are in active concert or participation with Defendants, as follows:

         1. With respect to the domains set forth at Appendix A and any registered Internet domains that are determined to be "Strontium Domains, " through the process set forth in this Order, and where the relevant domain registry is located in the United States, the domain registry shall take the following actions:

A. Transfer the domains to the permanent control of Microsoft, such that Microsoft is the registrant with control over hosting and administration of the domain. The domains should be transferred to Microsoft's account at the sponsoring registrar MarkMonitor or such other registrar and account details specified by Microsoft. The domains shall be made active and shall resolve in the manner set forth in this order, or as otherwise specified by Microsoft, upon taking control of the domains;
B. The domains shall be redirected to secure servers by changing the authoritative name servers to NS149.microsoftinternetsafety.net and NS150.microsoftinternetsafety.net and, as may be necessary, the IP addresses associated with name servers or taking other reasonable steps to work with Microsoft to ensure the redirection of the domains and to ensure that Defendants cannot use them to make unauthorized access to computers, infect computers, compromise computers and computer networks, monitor the owners and users of computers and computer networks, steal information from them or engage in any other activities prohibited by this Permanent Injunction;
C. The WHOIS registrant, administrative, billing and technical contact and identifying information should be the following, or other information as may be specified by Microsoft:
Domain Administrator Microsoft Corporation One Microsoft Way Redmond, WA 98052 United States Phone: .4258828080 Facsimile: .4259367329 domains@microsoft.com
D. Prevent transfer, modification or deletion of the domains by Defendants and prevent transfer or control of the domains to the account of any party other than Microsoft;
E. Take all steps required to propagate to the foregoing changes through the Domain Name System ("DNS"), including domain registrars.

         2. With respect to any registered Internet domains that are determined to be "Strontium Domains, " through the process set forth in this Order, and where the relevant domain registry is located outside of the United States, any such non-U.S. domain registry is respectfully requested, but is not ordered, to provide assistance to Microsoft to prevent the Defendants' use of the domains to make unauthorized access to computers, infect computers, compromise computers and computer networks, monitor the owners and users of computers and computer networks, steal information from them or engage in any other activities prohibited by this Permanent Injunction.

         IT IS FURTHER ORDERED that "Strontium Domains" are domains which are determined to meet the ...


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