The prime movers in the prosecution of end user signal piracy were the cable TV companies – Cablevision in particular.

As to satellite piracy, Directv was at the forefront of civil litigation. Just about all of the significant case law as to satellite piracy was due to the litigation initiatives of Directv. By 2005, just about all of the significant legal precedents had been established, and were therefore available to Echostar. A listing, together with brief summaries of the cases involved appears below.

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 activity, and have recently proceeded against “Dark Angel”, and others.

A successful seller or reseller prosecution typically results in the client list falling into the hands of the signal provider – sometimes by writ of seizure; sometimes by accord.

In any event, here follows the significant satellite piracy case law, followed by some explanatory comments: 

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. 4^th 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 11^th Circuit (Alabama, Florida, Georgia) case. This issue remains unresolved in both the 2^nd and 3^rd Circuits (New York, Connecticut, Vermont, Pennsylvania, New Jersey, Delaware and Virgin Islands. That is: some judges make awards pursuant to the section  (perhaps because they believe it mandatory); some do not.

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 California- Download a copy

Jan 23, 2004- DTV win in South Carolina. After deliberating for only two hours jury finds that three defendants unlawfully intercepted DTV’s signal. Download a copy of newspaper article

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 California.)  Apparently, all of this has not been lost on DTV. I note that memberships of record at pirate websites (DTV has seized records from several former sites) are occasionally being set forth to corroborate their allegations as to “device” purchases- and they appear to be consistent in following up the demand letters with lawsuits (even when marginal cases are involved). Accordingly, your editor is compelled to the conclusion that Direct TV has taken a decision that the best defense is a good offense (which in this case it probably is). Certainly, the issuance of threatening “Demand Letters” without a demonstration of DTV’s willingness to follow-up and prove their position in court would make their legal defense of the civil RICO class action considerably more difficult.

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 El Segundo, California). It is clear to me that these changes have three goals: to effectively eliminate any class action claim the end user may have; to change the location for any future judicial proceeding against you from the state where you reside to California (a major logistical advantage to DTV); and they have modified their terms to make it much easier to recommence prosecution of you (even if the settlement sum has been paid in full). The current boilerplate of the agreement expresses important points in inscrutable legalese. Considerable legal training is required to fully understand it.

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

 
General Information:
 

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 (Dish Network utilizes different systems, but the legal principles are exactly the same.) is about the “access card” or “CAM”, which is a programmable computer chip imbedded in a card (generally referred to as a “smart-card”). Satellite service providers change or modify their data streams (and their corresponding “access cards”) with some regularity. For example: to date, DTV has deployed five different generations (designated by DTV as “periods”) of “access cards” and corollary data-streams. At present, DTV has taken down its “Period 3” (“Hu Card”) data stream, leaving its “Period 4” stream (and a later “Period 5” version), which as of the date of this revision (08/01/07) continues to be a significant challenge to the hacking community. Data-stream switchovers are an initiative that is calculated to defeat piracy.

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 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.  

The Law Office of Gary Ruff presents the preceding as a public service. Gary is experienced in defending against cable and satellite TV company claims for signal theft, including unauthorized decryption and illegal or unauthorized possession of decoding equipment. His experience and familiarity with the subject, together with “economies of scale”* permit him to provide these services for very reasonable fees.

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.

Page last revised 10/01/18
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