Opinion

Google LLC v. Dmitry Starovikov

Court
District Court, S.D. New York
Filed
Sep 30, 2022
Cited by
0 cases
Authority
More cited than 27.5%

The opinion

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

GOOGLE LLC,

Plaintiff,

v. Civil Action No. 1:21-cv-10260-DLC

DMITRY STAROVIKOV;

ALEXANDER FILIPPOV;

Does 1-15,

Defendants.

FINAL DEFAULT JUDGMENT AND ORDER

FOR PERMANENT INJUNCTION

This matter came before the Court on Plaintiff’s Google LLC (“Google”) Motion

for Default Judgment and Entry of Permanent Injunction. The Court finds that

Google has established the elements of its claims under: the Racketeer Influenced

and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c)–(d); the Computer

Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030; the Electronic Communications

Privacy Act (“ECPA”), 18 U.S.C. § 2701; the Lanham Act, 15 U.S.C. §§ 1114, 1125;

tortious interference with business relations; and unjust enrichment.

Defendants John Does 1–15 (“Doe Defendants”) have been properly served but

failed to answer, plead, or otherwise defend this Action, and the prerequisites for a

permanent injunction have all been met. Google is therefore entitled to default

judgment under Rule 55(b) and a permanent injunction pursuant to Rule 65 of the

Federal Rules of Civil Procedure, 15 U.S.C. § 1116(a), and 28 U.S.C. § 1651(a) (the

All-Writs Act).

THE COURT HEREBY FINDS THAT:

Jurisdiction and Venue

1. This Court has federal-question jurisdiction over Google’s claims under

the Racketeer Influenced and Corrupt Organizations Act, the Computer Fraud and

Abuse Act, the Electronic Communications Privacy Act, and the Lanham Act under

28 U.S.C. § 1331. This Court also has jurisdiction over the Lanham Act and related

state and common law unfair competition claims under 28 U.S.C. § 1338 and 15

U.S.C. § 1121, respectively. This court has supplemental jurisdiction over the state-

law claims under 28 U.S.C. § 1367.

2. This Court has personal jurisdiction over the Doe Defendants because:

a. Doe Defendants distribute malware to Google users in

this district and within the state of New York;

b. Doe Defendants send commands to infected user

computers in this district and within New York to

carry out illicit schemes;

c. Google’s Complaint and supporting papers

demonstrate that the Doe Defendants undertook

these activities intentionally with knowledge that

their actions would cause harm to users in New York,

and cause Google harm in New York; and

d. Google does business in New York and has done

business in New York for many years.

3. Venue is proper in this judicial district under 28 U.S.C. § 1391(c)

because Doe Defendants are not residents of the United States and may be sued in

any judicial district. Venue is also proper in this judicial district under 28 U.S.C. §

1391(6) and 18 U.S.C. § 1965 because: a substantial part of the events or omissions

giving rise to Google’s claims occurred in this judicial district; a substantial part of

the property that is the subject of Google’s claims is situated in this judicial district;

a substantial part of the harm caused by Doe Defendants has occurred in this judicial

district; and Doe Defendants transact their affairs in this judicial district. Moreover,

Doe Defendants are subject to personal jurisdiction in this district and no other venue

appears to be more appropriate.

Default Judgment

4. Doe Defendants were properly served with the summons, complaint,

and the other pleadings in this Action. Doe Defendants received adequate notice of

this Action, in satisfaction of due process requirements and as required by Fed. R.

Civ. P. 4. Specifically, Doe Defendants have been served by email, text message

(including by WhatsApp), and publication on a publicly available website. Doe

Defendants also have actual notice of these proceedings based on (a) widespread

media coverage of this case, including in Russia, that specifically mentions Google’s

claims against Defendants Starovikov and Filippov and several of their unnamed

associates, (b) Google’s disruption of the botnet’s activity and Defendants’ actions in

response thereto, and (c) two prominent co-conspirators’ actual notice of, and active

participation in, this lawsuit.

5. Doe Defendants have failed to appear, plead, or otherwise defend

against this Action. The requisite time of 21 days between service of the summons

and complaint has elapsed. The Clerk properly entered default pursuant to Rule

55(a) on June 10, 2022. ECF No. 85.

6. The evidence indicates that no Doe Defendant is an infant or

incompetent.

7. The factual allegations in the complaint, which are deemed admitted by

Doe Defendants’ default, and the further evidence in Google’s supporting papers

establish that Doe Defendants are liable for violations of the Racketeer Influenced

and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c)–(d) (Count I); the Computer

Fraud and Abuse Act, 18 U.S.C. § 1030 (Count II), the Electronic Communications

Privacy Act, 18 U.S.C. § 2701 (Count III), Lanham Act, 15 U.S.C. §§ 1114, 1125

(Count IV), and for tortious interference with business relations and unjust

enrichment (Counts V–VI).

8. RICO. The Doe Defendants have violated and continue to violate the

RICO statute.

a. The Doe Defendants were, and still are, active participants in

the operation and management of the Glupteba botnet with

direct ties to a C2 server previously associated with proxying

activity on infected machines.

b. Google has established that the Doe Defendants formed an

enterprise. The Doe Defendants shared a common purpose to

spread malware to build a botnet that is deployed for

numerous criminal schemes for profit.

c. Google has established that the Doe Defendants engaged in a

pattern of racketeering activity. The predicate acts include

three separate violations of the CFAA. The Doe Defendants

have violated and continue to violate the CFAA, resulting in

damage as defined in § 1030(c)(4)(A)(i)(VI), by (1) infecting

protected computers with malware, (2) transmitting to such

protected computers programs designed to carry out their

schemes, and (3) transmitting to such protected computers

commands to infected computers. Google has shown that the

Doe Defendants committed other predicate acts, including

violations of the federal wire fraud statute, 18 U.S.C. § 1343,

federal identity fraud statute, 18 U.S.C. § 1028, and federal

access device fraud statute, 18 U.S.C. § 1029.

d. Google has suffered injury to its business or property as a

result of Doe Defendants’ acts that constitute these predicate

offenses.

9. CFAA. The Doe Defendants have violated and continue to violate the

Computer Fraud and Abuse Act. The CFAA prohibits, among other things,

intentionally accessing a protected computer, without authorization, and thereby

obtaining information from that computer. See 18 U.S.C. § 1030(a)(2)(C). The Doe

Defendants intentionally accessed thousands of users’ computers operating in

interstate commerce through the internet, without authorization, to infect them with

malware. They did so to obtain information such as account credentials and URL

history, which they have then sold to others. This has affected well over ten

computers within a one-year span and resulted in damages in excess of $5,000.

10. ECPA. The Doe Defendants have violated and continue to violate the

Electronic Communications Privacy Act. The ECPA prohibits, among other things,

“intentionally access[ing] without authorization a facility through which an electronic

communication service is provided” to “obtain[], alter[], or prevent[] authorized access

to a wire or electronic communication while it is in electronic storage.” 18 U.S.C. §

2701(a). The Doe Defendants have deliberately broken into the accounts of Google

users and thereby obtained unauthorized access to emails and other communications

stored on Google servers.

11. Lanham Act. The Doe Defendants violated the Lanham Act by using

Google’s YouTube mark—a valid, protectable, registered and incontestable

trademark—in commerce in a manner likely to have caused confusion among

consumers by operating a website that used the YouTube mark in the domain name

and on the landing page. See 15 U.S.C. § 1114(1). In addition, the Lanham Act makes

unlawful a false or misleading representation, including a false designation of origin,

that “in commercial advertising or promotion, misrepresents the nature,

characteristics, qualities, or geographic origin of . . . goods, services, or commercial

activities.” 15 U.S.C. § 1125(a)(l)(B). The Doe Defendants deceived internet users by

falsely marketing their malware as software for downloading videos from YouTube,

for their own profit, to the detriment of Google and Google’s trademarks. By

establishing the Doe Defendants’ liability under the Lanham Act, Google is also

entitled to a presumption of irreparable harm. 15 U.S.C. § 1116(a).

12. Google has shown that the Doe Defendants are liable for New York

common law claims of tortious interference with business relationships and unjust

enrichment.

A Permanent Injunction is Warranted

13. “It is well-established that a court may grant a permanent injunction as

part of a default judgment.” Ideavillage Prod. Corp. v. OhMyGod 1, 2020 WL

6747033, at *4 (S.D.N.Y. Nov. 17, 2020). “Whether to issue a permanent injunction

in such a case depends on (1) the likelihood that plaintiff will suffer irreparable harm

if an injunction is not granted; (2) whether remedies at law such as monetary

damages are inadequate to compensate plaintiff for that harm; (3) the balance of

hardships; and (4) whether the public interest would not be disserved by a permanent

injunction.” Id. (citing Salinger v. Colting, 607 F.3d 68, 77–78 (2d Cir. 2010)). The

Court finds that Google has established each of these factors and that a permanent

injunction is warranted.

14. Irreparable Harm and Inadequate Remedies at Law. Google has

established that it was irreparably injured and that legal remedies are inadequate to

compensate for that harm. In particular, it has shown that the Doe Defendants—

through their participation in, and operation of, the Glupteba Enterprise—have

threatened the security of the internet, including Google platforms, by transmitting

malware through the internet to configure, deploy, and operate a botnet. The

Enterprise has distributed malware on devices of Google users, compromising the

security of those devices and continues to issue commands to those devices to carry

out criminal activities, such as selling access to Google user accounts and selling

fraudulent credit cards to use on those accounts.

15. The Doe Defendants control a botnet that has infected more than one

million devices. At any moment, the botnet’s extraordinary computing power could

be harnessed as part of additional criminal schemes. Doe Defendants could, for

example, enable large ransomware or distributed denial-of-service attacks on

legitimate businesses and other targets. Doe Defendants could themselves

perpetrate such a harmful attack, or they could sell access to the botnet to a third-

party for that purpose.

16. In addition, the Doe Defendants’ conduct continues to infringe Google’s

trademarks, injure Google’s goodwill, and damage its reputation by creating

confusion as to the source of the Glupteba malware. This constitutes irreparable

harm.

17. Balance of the Hardships. The equities also favor a permanent

injunction. The criminal enterprise defrauded, and continues to defraud, consumers

and injures Google. There is no countervailing factor weighing against a permanent

injunction as there is no legitimate reason why Doe Defendants should be permitted

to continue to disseminate malware and manipulate infected computers to carry out

criminal schemes.

18. Public Interest. Google has shown that the public interest favors

granting a permanent injunction. Every day that passes, there is substantial risk

that Doe Defendants may infect new computers, steal more account information, and

deceive more unsuspecting victims. After receiving notice of the Temporary

Restraining Order and Preliminary Injunction, Doe Defendants have continued to

engage in conduct enjoined by this Court’s Orders. Doe Defendants have attempted

to establish new C2 servers in response to Google’s ongoing disruption efforts and

have continued to establish new websites in order to reconstitute Glupteba

Enterprise storefronts and provide Glupteba Enterprise customers continued access

to their accounts. Protection from malicious cyberattacks and other cybercrimes is

strongly in the public interest, and the public interest is clearly served by enforcing

statutes designed to protect the public, such as RICO, the CFAA, the ECPA, and the

Lanham Act.

FINAL JUDGMENT AND PERMANENT INJUNCTION

IT IS HEREBY ORDERED that Google’s Motion for Default Judgment and

Entry of a Permanent Injunction is granted.

IT IS FURTHER ORDERED that Doe Defendants are in default, and that

judgment is awarded in favor of Google and against Doe Defendants.

IT IS FURTHER ORDERED that Doe Defendants, any of their officers,

agents, servants, employees, attorneys, and all others in active concert or

participation with them, who receive actual notice of this Order by personal service

or otherwise including via email (“Restrained Parties”), are permanently restrained

and enjoined from, anywhere in the world:

1. Intentionally accessing and sending malicious code to Google or the

protected computers of Google’s customers without authorization;

2. Sending malicious code to configure, deploy, and/or operate a botnet;

3. Attacking and compromising the security of the computers or networks

of Google’s users;

4. Stealing and exfiltrating information from computers or computer

networks;

5. Creating websites that falsely indicate that such websites are or were

associated with Google, YouTube, or any other Google affiliate, including through use

of Google’s YouTube mark or other false or misleading representations;

6. Configuring, deploying, operating, or otherwise participating in or

facilitating the botnet described in Google’s pleadings, including but not limited to

the C2 servers hosted at, and operating through, the IP Addresses listed in Appendix

A to Google’s Complaint and through any other component or element of the botnet

in any location;

7. Delivering malicious code designed to steal credentials and cookies;

8. Monitoring the activities of Google or Google’s customers;

9. Stealing information from Google or Google’s customers;

10. Selling access to the accounts of Google’s customers;

11. Corrupting applications on victims’ computers and networks, thereby

using such computers or networks to carry out the foregoing activities;

12. Offering or promoting credit cards to others for use in purchasing

services from Google;

13. Misappropriating that which rightfully belongs to Google, Google’s

customers and users, or that in which Google has a proprietary interest;

14. Using, linking to, transferring, selling, exercising control over, or

otherwise owning or accessing domains connected with the Enterprise, its activities,

or its use of the botnet;

15. Using, transferring, exercising control over, or accessing any accounts

used in the transfer of money or electronic currency, including cryptocurrency, or in

the processing of card-based transactions, as a means to further Doe Defendants’

unlawful schemes;

16. Using and infringing Google’s trademarks, including Google’s YouTube

mark;

17. Using, in connection with Doe Defendants’ activities, any products or

services with any false or deceptive designation, representations or descriptions of

Doe Defendants or of their activities, whether by symbols, words, designs, or

statements, which would damage or injure Google or its customers or users or give

Doe Defendants an unfair competitive advantage or result in deception of consumers;

18. Acting in any other manner which suggests in any way that Doe

Defendants’ activities, products or services come from or are somehow sponsored by

or affiliated with Google, or otherwise passing off Doe Defendants’ activities, products

or services as Google’s; and

19. Undertaking any similar activity that inflicts harm on Google, Google’s

customers, or the public.

Upon service by email, text message, or internet publication, the Doe

Defendants and other Restrained Parties shall be deemed to have actual notice of the

issuance and terms of the Default Judgment and Permanent Injunction Order, and

any act by any of the Doe Defendants or the Restrained Parties in violation of any of

the terms of the Default Judgment and Permanent Injunction Order may be

considered and prosecuted as contempt of Court.

IT IS FURTHER ORDERED that Google may serve this Order on the

persons and entities providing services, including domain name registrars, name

servers, web hosting services, and other internet service providers, relating to the

domains and IP addresses identified by Google as connected to the Enterprise, its

activities, or its botnet, requesting that those persons and entities take reasonable

best efforts to implement the following actions:

1. Take reasonable steps to identify incoming and/or outgoing internet

traffic on their respective networks that originates and/or is being sent from and/or

to such identified domains and IP addresses;

2. Take reasonable steps to block incoming and/or outgoing internet traffic

on their respective networks that originate and/or are being sent from and/or to such

identified domains and IP addresses except as explicitly provided for in this Order;

3. Take other reasonable steps to block such traffic to and/or from any

other IP addresses or domains to which Doe Defendants or Doe Defendants’

representatives moved the botnet infrastructure, to ensure that Doe Defendants

cannot use such infrastructure to control the botnet;

4. Disable completely the computers, servers, electronic data storage

devices, software, data or media assigned to or otherwise associated with such

identified domains and IP addresses and make them inaccessible from any other

computer on the internet, any internal network, or in any other manner, to Doe

Defendants, Doe Defendants’ representatives, and all other persons, except as

otherwise ordered herein;

5. Completely, and until further order of this Court, suspend all services

to Doe Defendants or Doe Defendants’ representatives or resellers associated with

such identified domains and IP addresses;

6. Refrain from providing any notice or warning to, or communicating in

any way with Doe Defendants or Doe Defendants’ representatives until the steps

required by this Order are executed in full, except as necessary to communicate with

hosting companies, data centers, Google, or other ISPs to execute this Order;

7. Not enable, and take all reasonable steps to prevent, any circumvention

of this Order by Doe Defendants or Doe Defendants’ representatives associated with

such identified domains and IP addresses, including, without limitation, not

enabling, facilitating, and/or allowing Doe Defendants or Doe Defendants’

representatives or resellers to rent, lease, purchase, or otherwise obtain other

domains and IP addresses;

8. Preserve, retain, and produce to Google all documents and information

sufficient to identify and contact Doe Defendants and Doe Defendants’

representatives operating or controlling such identified domains and IP addresses,

including any and all individual or entity names, mailing addresses, e-mail

addresses, facsimile numbers, telephone numbers or similar contact information,

including but not limited to such contact information reflected in billing, usage, access

and contact records and all records, documents and logs associated with the use of or

access to such domains and IP addresses;

9. Provide reasonable assistance in implementing the terms of this Order

and take no action to frustrate the implementation of this Order; and

10. Completely preserve the computers, servers, electronic data storage

devices, software, data, or media assigned to or otherwise associated with such

identified domains and IP addresses, and preserve all evidence of any kind related to

the content, data, software, or accounts associated with such domains, IP addresses,

and computer hardware.

IT IS FURTHER ORDERED that Google may serve this Order upon such

persons as Google determines are necessary to address and enjoin activity associated

with domains and IP addresses identified by Google as being used in connection with

the Enterprise, its activities and its botnet, without seeking further leave of the court.

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So ordered. to. /h

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tpl Be, DENISE COTE

United States District Judge

14

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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