Problem with Dish Network
(Echostar)? You’re in the right place.
Page last revised
03/03/10
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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 (Dish Network), their anti-signal
theft initiatives had, until recently, 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. Recently,
however, they are doing electronic monitoring in order to detect unlawful
IKS server activity.
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
Click
here for a copy of Gary’s Retainer Agreement
The Law Office of
“Defending
Consumers Against Electronic Piracy Claims” TM
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