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Title 18 USC 2512 case won aginst DirecTV™ in END USER case.
4.0 ANALYSIS OF DIRECTV'S LAWSUIT.
According to their Demand Letters and "draft complaint," DIRECTV is relying upon three federal statutes that address wiretapping or electronic surveillance. What follows is our analysis of these statutes. This is not intended to be a complete and thorough analysis, but is just a general discussion of some perceived weaknesses. This does not constitute the giving of legal advice.
4.1 What about 47 USC Section 605 cited by DIRECTV?
47 USC Section 605 prohibits the unauthorized receipt of encrypted satellite signals. It carries a penalty of up to $10,000. Unless DIRECTV has evidence you actually watched unauthorized channels, this would seem to be a losing allegation. DIRECTV is arguing that a presumption of unauthorized viewing arises from the mere possession of the hardware that allows you to do it. They cite a case--Community Television Systems, Inc. v. Caruso (2d. Cir. 2002) 284 F.3d 430--which exposes a major flaw in their own reasoning.
In that case, a company selling cable box descramblers was raided and cooperated with the authorities by turning over the names and addresses of the customers who bought the boxes. The business records indicated the consumers had purchased "cable television descramblers" and the business owner testified he installed the units on the televisions, tuned to the proper channel to receive the cable transmissions. From those facts, the court indicated a rebuttable presumption arose that both husband and wife at the residence were liable, but this could be rebutted (the wife could say she had no idea what hubby was up to). Unfortunately, for DIRECTV, it does not appear they have any witness to testify he came into your house and showed you how to use your smart card reader or unlooper to steal satellite programming. So the case is not helpful to DIRECTV.
47 USC Section 605 also contains a section which carriers a penalty of up to $100,000, which DIRECTV likes to use to scare people. This penalizes those who manufacturer, sell, modify, export, import, distribute, etc. devices knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming. Putting aside the knowledge requirement, this section also does not apply to simple possession. That is why DIRECTV accuses you of "modifying" a device. Excuse me, but they have never seen the device (unless you give it to them), so how do they know if you modified it?
4.2 What about 18 USC section 2511 and 2512 cited by DIRECTV?
DIRECTV also relies upon 18 USC Section 2511 and 18 USC Section 2512 which are criminal statutes. The first statute punishes unauthorized viewing so it has the same problems discussed above. The second one is their best bet because it punishes possession of a device if you know or have reason to know
1) It's primarily useful to receive unauthorized satellite programming, and
2) It came in the mail (easy enough to prove)
Now DIRECTV cannot win this case by bringing in an expert who says he knows an unlooper's primary use is to steal programming. Instead, DIRECTV must show you should have known this primary function from the design of the item (i.e., its appearance, the diagrams or instructions that came with it, anything on the web page from which you ordered it, etc.) You can see that simply showing you possessed a particular item is not sufficient.
Technically, violations of 2511 and 2512 are punishable criminally. But DIRECTV is claiming it has a right to recover civil damages under Section 2520. That section does allow civil damages against a consumer who intercepts, discloses or uses the DIRECTV signal. The penalties can include $10,000 in statutory damages plus the possibility of punitive damages and attorney's fees and costs. Some attorneys argue the above penalty is not available unless the consumer has actually viewed the unauthorized satellite programming. We suggest you take a look at the following cases:
Flowers v. Tandy Corporation (4th Cir. 1985) 773 F.2d 585.
Oceanic Cablevision, Inc. v. M.D. Electronics (D. Neb. 1991) 771 F.Supp. 1019.
Ages Group L.P. v. Raytheon Aircraft Co., Inc. (M.D. Ala. 1998) 22 F.Supp.2d 1310
Directv, Inc. v. EQ Stuff, Inc. (C.D. Cal. 2002) 207 F.Supp.2d 1077.
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COMMENT:
If you are sued, your attorney should file a motion to dismiss the claim under section 2512. If successful, this will make it impossible for DIRECTV to win its lawsuit against you without proving you intercepted or used the satellite signal without authorization. But how is DIRECTV going to prove that you used their signal? I know they will allege it in your letter, but where is the proof? This is what was won by Mr. Steve Loewenthal in Tampa Florida so there is now case law or jurisprudence on this point. So it will be very hard for them to alledge a "cause of action" (DAMAGES) if they cannot also show that you intercepted and decoded the signal
Mr. Steve Loewenthal welcomes calls for information foe END USERS and is glad to assist if he can. This is the beginning the creation of a large database of wins that are expected to pile up over the next month or too and make it virtually impossible to win damages without PROVING that the signal was decoded, Intercepted and used without payment. I will also be posting this actual ruling within a day or two.
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