USDC S.D. Illinois, November 5, 2008

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The district court granted plaintiff’s request for an ex parte TRO and impoundment order to stop defendant from selling pirated copies of plaintiff’s video game Gears of War 2.

The plaintiff developed and sold the video game Gears of War which has sold over five million copies. It planned on releasing Gears of War 2 on November 7. The plaintiff filed suit for copyright infringement, conversion and violation of the anti-piracy provisions of the DMCA against the defendant who advertised on Craigslist.com that he could modify video game console boxes to allow users to use pirated copies of video games and that he had copies of the plaintiff’s Gears of War 2 game for sale before its public release. The plaintiff also requested an ex parte TRO and impoundment order to stop distribution and production of pirated copies of Gears of War 2 and other games copyrighted by the plaintiff.

Courts have stated that a TRO without notice to the defendant should be granted only in extremely limited circumstances. Federal Rule of Civil Procedure 65(b)(1) permits a federal court to grant a TRO without notice to the adverse party only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

The court accepted the plaintiff’s assertion that it would suffer immediate and irreparable harm before notice could be provided and that providing notice might cause the defendant to destroy or hide pirated versions of Gears of War 2. Plaintiff provided an affidavit from its Vice President of Marketing who indicated that because of the small physical size of pirated DVDs, they can easily be moved or destroyed, and any illegal data on a computer hard drive can easily be deleted or overwritten. The plaintiff argued that, if the adverse party is given notice, there is a strong risk that the pirated versions of Gears of War 2 may be destroyed or otherwise hidden, making further prosecution of the action useless due to a lack of evidence. In addition, the court accepted the plaintiff’s assertion that immediate irreparable loss will result before notice can be given because the public hype that accompanies the release of a new game is diminished by the defendant's illegal actions. Therefore, the court held that the plaintiff met the standard for an issuance of a TRO but limited it to Gears of War 2 only.