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Page last revised 08/01/07
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From the Law Office of
Have you received a satellite TV
company letter claiming you have purchased an “Illegal Satellite Signal
Theft Device and/or other correspondence under the caption of “Satellite
Signal Theft” or “Modified Receiver”? Or, are you being sued? If so,
this site is presented for your information.
One preliminary note: As
Directv (Direct TV) has been at the
forefront of civil litigation in this area, all of the cases herein involve
them. You should understand however, that the author offers defense
representation against all satellite providers; including of course, Dish
Network (Echostar). As to Echostar, their anti- signal theft initiatives have,
to date, primarily taken two forms: prosecution of both sellers and resellers
of devices and prosecution of end users who have submitted or returned
unlawfully modified receivers to Echostar.
This page is divided into two
sections:
“Important News” and “General Information”
Important News – From the Law Office of
Aug 9, 2005- DTV wins appeal,
establishing DTV’s right to claim enhanced damages against end user for
assembly or modification of device(s). See Directv v. Robson
June 14, 2005- DTV loses end user case. See Directv v. Deskin
May 16, 2005- DTV wins appeal re: 18 U.S.C. § 2511 claim. 4th Circuit
reverses lower court’s dismissal. See Directv v.
Nicholas
Oct 23, 2004- DTV appeals summary dismissal of end
user case. See Directv
v. Minor
June 15, 2004- 11th Circuit dismisses DTV’s 18 U.S.C. § 2512 claim. This is a significant, but very
limited, appellate decision against Direct TV. The Court decided that DTV has
no civil right of action against those who simply possess pirate
devices in violation of 18 U.S.C. § 2512. See Directv v.
Mike Treworgy [It is important to note that
this decision has no effect upon DTV’s
right to prosecute civil claims against those who unlawfully intercept their
signal or traffic in devices.]
June 3, 2004- Judge has discretion in awarding
damages pursuant to 18 U.S.C. § 2520. See
Directv Inc. v. Michael Brown. [It should be noted this is an 11th
Circuit (
Mar 3, 2004- Beware of high statutory damage claim
DTV (and Echostar) has recently made pursuant to 47 U.S.C. § 605(e)(4). Echostar (and occasionally Directv) now take
the position that a modification of the “access card” is a violation of 47 U.S.C. § 605(e)(4).
If you study 47 U.S.C. § 605(e)(3)(C)(i)(II) you will
see that the minimum statutory
damages for each violation of 47 U.S.C. § 605(e)(4)
is $10,000.00, while minimum
statutory damages pursuant to 47 U.S.C. § 605(a) is
$1,000.00. Although I believe this claim
can be successfully defended on the merits, you must now be extremely careful
not to permit a case against you to go into default. That is: if a Complaint against you contains this
claim, you absolutely must Answer and defend.
Feb 25, 2004- Well respected jurist
dismisses Directv’s “2512” claim in Northern District of
Jan 23, 2004- DTV win in
Dec 30, 2003 District of Minnesota brings
scholarly and succinct clarity to the perplexing issue of whether or not DTV
has a right of civil action for “the manufacture, distribution, possession of
…intercepting…devices”: Download a copy of
DTV v. Bertram.
Oct 9, 2003 An observation on the “class action”
against DTV: Briefly put,
the civil RICO class action against Direct TV alleges that the “Demand Letter”
campaign, based upon insufficient and uncorroborated evidence, is tantamount to
organized extortion, forcing people to pay enormous penalties that are
unrelated to Directv’s actual damages. (You can download a
copy of the Complaint, as filed in the Central District
of
Sept 4, 2003 Defendant’s motion to dismiss DTV’s complaint for “failure to state a
claim” is denied. DTV is to have the
opportunity to prove its case. Download DTV v.
Cardona.
July 31, 2003: DTV re-dux. Judge in Karpinsky case (immediately below)
reinstates dismissed DTV case. Based upon evidence introduced by
DTV that another Karpinsky with the same address purchased a DTV compatible
system from Radio Shack, the judge reconsidered and vacated the dismissal;
thereby reinstating Direct TV’s case against Karpinsky. Download DTV v. Karpinsky II (sic)
July 16, 2003: DTV revisits the “Big Apple”; this
time winning an award of $5,500 for damages and attorney fees for a one
“device” case (if indeed this was a “device”). Download DTV
v. Hamilton II (sic)
June 17, 2003: Judge summarily dismisses DTV case against non-subscriber
who purchased two (2) “Smartcard Recovery Systems”. Download
DTV v. Karpinsky
June 11, 2003: Settlement alert- use extreme caution. Direct TV has made recent and major changes in the
terms of their proposed SETTLEMENT AGREEMENT AND RELEASE (which issues from their office in
June 6, 2003: Closed end-user
cases in Middle District of Florida, including default judgment for Directv for $30,825.00 (inclusive
of attorney fees) for a three “device” case. Download
decision , which demonstrate how easily (and without a hearing) a
plaintiff can secure a default judgment against you; even if the default
judgment is inconsistent with the law- which this one is.
May 07, 2003: Published end-user case- DTV debut in the “Big Apple”. Download DTV v.
Hamilton
April 1, 2003: DTV prevails in class action lawsuit:
class action suit against
DTV’s “end user” letter campaign is dismissed pursuant
to Motion to Dismiss made pursuant to California “Anti-SLAPP Law” (“SLAP” is an
acronym for Strategic Lawsuits Against Public Participation) in California
Superior Court. Download decision
You
should know that a successful lawsuit against an individual for in home unauthorized
decryption can potentially result in a judgment for $10,000.00 (and possibly
very much more if the pleading requests damages pursuant to 47
U.S.C. § 605(e)(3)(C)(i)(II)) for each violation, plus mandatory
attorney fees and full costs. Importantly, the relevant statutes set forth both
civil and criminal penalties. As a lawyer with considerable experience in
defending signal-theft cases, and with the understanding that I have
oversimplified the issues a little bit, I offer you the following observations:
Two preliminary notes:
The referenced U.S.C. sections herein demand
careful reading: among other things, they are a composite of both criminal and
civil violations and actual and statutory damages. Fortunately, the LII (legal
information institute) sets forth the statutes in an indented fashion that is
inclined to make the task of reading easier (at least visually). Your editor
expresses his gratitude to them for their public service in permitting “links”.
The remarks on this page are addressed only to
satellite signal theft cases.
In
essence, either Directv’s or Echostar’s
lawsuit is saying this: You acquired and used pirate devices
to engage in unauthorized reception of our encrypted signals; it’s
illegal; we suffered economic injury; we want damages, and we want a court to
tell you to stop it.
Signal theft from Directv (and
varying with the means deployed, Dish Network) is about the “access card” or “
Although it should be regarded as
outdated as to the specific technology deployed, the following still remains of
value as an aid to understanding the law. Accordingly, your editor has both
indented it and set it forth in smaller font:
I believe it
improves understanding to divide unauthorized initiatives into two classes:
“primary initiatives” and “secondary” or “supportive” initiatives. I consider
the following to be “primary initiatives”:
The use of
access cards that have been programmed (without authorization) to decrypt
encrypted signals. This programming had been done professionally or by the
end-user through the use of various devices such as: “loader” or “programmer”
(“reader-writer”).
Substitutes
for the “access card” such as:
“Emulation”,
which requires the use of three devices (“emulator board”, card-reader, and
computer with two serial ports) to “emulate” what the access card's microchip
does. Or, in the Echostar venue, devices
that simulate the access card, such as the “Atmega”
In order to understand
a “supportive initiative”, you need first to know that signal providers use
electronic initiatives known as ECM’s (Electronic Countermeasures) to disable
unauthorized cards and software. A
“supportive” initiative is an effort to rehabilitate an access card that has
succumbed to an ECM. This is the application for devices such as the “unlooper”
and “boot-loader”. As some “unloopers”
can be utilized to read/write “access cards”, they can also be utilized for the
card-reading function of the emulation process.
In any event,
I make the distinction between “primary” and
“secondary” initiatives for the following reason: As to damages,
“duration” of illegal activity (the length of time for which unauthorized
reception continued) is a major issue. If the court determines that
unauthorized reception took place, it will then greet the issue of damages
(what this is going to cost you). The delivery of a “primary initiative” device
will frequently (but not necessarily) mark when the unlawful activity commenced
(which means that it tends to limit “duration”). On the other hand a court
determination of unauthorized reception involving a “secondary initiative” device (implying an
effort to rehabilitate a debilitated device) carries with it an inference of
unlawful reception that occurred before the “secondary initiative” device
arrived, therefore making the
commencement of the “duration” period open ended.
Title 47
U.S.C should not be confused with Title 18 U.S.C. They are separate titles;
each with it’s own set of civil and criminal penalties; and importantly, each
with a differing Statute of Limitations period and differing means for
calculating the accrual thereof.
The 18
U.S.C. sections referred to in the correspondence from Directv are within
sections commonly referred to as the “Wiretap Act” (including, but not limited
to: 18 U.S.C. § 2511;
18 U.S.C. § 2512;
18 U.S.C. § 2520) The “Wiretap Act” is a lengthy piece of
legislation which provides both criminal and civil penalties for surreptitious
interception of certain communications, including satellite communications, and
for the distribution or possession of associated equipment or devices.
The idea
that Direct TV has no right of civil action pursuant to 18 U.S.C. § 2512 (“the manufacture, distribution, possession of
…intercepting…devices”) is winning wide, but not universal acceptance*.
See Directv v.
Mike Treworgy. However, the viability of Direct
TV’s right of civil action pursuant to 18 U.S.C. § 2511
(unauthorized interception or use of the signal) is not disputed. Very
importantly: even if unauthorized reception can be proved, there is not
necessarily identity between the number of “pirate access devices” in issue and
the “device” count which may be a determining factor in (47 U.S.C. § 605(a)) civil
damages.
*The variations in case law and
differences in the interpretation of federal statutes can be credited to the
organization of the federal court system into three levels: Supreme Court,
Circuit Courts, and District Courts; a Circuit Court having appellate
jurisdiction only over the District Courts within the Circuit. By way of
relevant example, take the Bertram case: Bertram was decided in the District of
Minnesota, which is in the Eighth Circuit. If DTV elects to appeal the
decision, the appeal will be heard by the Eighth Circuit. If the Eighth Circuit
affirms, the precedent will be binding on all District Courts within the Eighth
Circuit, but not the other Circuits. Only the Supreme Court can bring
uniformity to all of the various Circuits- and very few cases are accepted for
review by the Supreme Court.
47 U.S.C. §
605(e)(3)(C)(i)(II) provides statutory damages of $10,000.00 to $100,000.00
per violation (per device) for manufacture, modification or distribution of
devices. Please mark it well that in the
“Title 47” venue, “distribution” damages
are available without the need to prove unauthorized reception of the signal.
Moreover, the statutory test for distribution is disassociated from the making
of a profit. Here follows the actual excerpt from the statute:
Any person who manufactures,
assembles, modifies, imports, exports, sells, or distributes any electronic,
mechanical, or other device or equipment, knowing or having reason to know that
the device or equipment is primarily of assistance in the unauthorized
decryption of satellite cable programming, or direct-to-home satellite services,
or is intended for any other activity prohibited by subsection (a) of this
section, shall be fined not more than $500,000 for each violation, or
imprisoned for not more than 5 years for each violation, or both. For purposes
of all penalties and remedies established for violations of this paragraph, the
prohibited activity established herein as it applies to each such device shall
be deemed a separate violation. 47 U.S.C. § 605(e)(4)
[editors note: together with a right of civil action for the damages referenced
above]
Although they are latecomers to
civil litigation against end users, Echostar (Dish Network) typically does not
claim pursuant to Title 18; their end-user claims generally are made pursuant
to 47 U.S.C. § 605 and the
Digital Millennium
Copyright Act §§ 1201(a)(1)(A) and
1201(a)(2) and (b)(1)
A decision as to whether to seek
an immediate discontinuance based upon error or insufficient evidence; await a
lawsuit; settle; or having been sued, to litigate or settle, is driven by three
basic considerations:
An understanding of your legal
position, which requires a competent professional evaluation of the factual
circumstances associated with your individual situation;
if a decision to settle is
taken, in return for the settlement sum you will receive a “release”- the
importance of the terms of which cannot be over emphasized;
the settlement sum, which is
negotiable- if in fact settlement is recommended.
In any
event, this is what I do. If you elect to become a client it will be my
pleasure to both advise and represent you in accordance with the terms of my
Retainer Agreement. This Agreement can be downloaded below.
[As
end-user cable cases and end-user satellite lawsuits are close cousins
(although there are significant distinctions which, generally speaking, make a
satellite case more complicated than a cable case) you may find the information
available at our sister site www.pirateboxblues.com/
to be instructive.]
The Law Office of
If you are anywhere in the U.S.A, contact
* For example: the vast majority
of necessary court papers, discovery demands, and motions used in defending
these claims are already in our computers. When that is the case, we don’t have
to charge you to research and write a new document; instead, we charge you
considerably less to edit and submit the one in our files.
Please
note: Recent initiatives by AT&T Broadband, Cablevision, Comcast, Cox
Cable, Directv, Echostar, Time Warner, Secure Signals International
(representing service providers), and others, have excited a flurry of initial
inquiries from prospective clients. While this response is gratifying, it has
been a tax on secretarial time. Accordingly, and as an alternative to
telephoning or emailing, you can download a draft of
The Law Office of
“Defending Consumers Against
Electronic Piracy Claims” TM
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