Dan Gillmor
DirecTV Reins in the Legal Attack Dogs

In one of the uglier "intellectual property" abuses, DirecTV has been suing people for possession of tools it claims can be used to get TV shows without paying for them. The Electronic Frontier Foundation and Stanford Law School's Center for Internet and Society have challenged the satellite TV company on this conduct, and on Monday DirecTV agreed to modify its approach, according to this press release, which says in part:

The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”

DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed.

Perhaps DirecTV saw some writing on the wall. On Tuesday, a federal appeals court has ruled that the company can't sue solely because someone possesses such equipment.
These are the kinds of stories that make me sometimes wish I lived in America. Good job EFF and Stanford Law School.

9 Comments

Hmmm:

....The company also promised that it will investigate every substantive claim of innocence it receives....

Welcome to the new, commercially-streamlined American jurisprudence system. "Guilty until proven innocent."

Fascinating.

Was that bit about living there sarcasm? I have a really bad cold and it's way too early in the morning to tell. Anyway, yeah, it's nice that some organizations still protect citizens' and consumers' rights. The EFF is pretty cool anyway.

Nils, no, it wasn't sarcastic. I think that lots of bad things are happening in the US, but stories like this make me feel like the US also has the ability to fight back against government and corporate bullying and stupidity.

In Japan, I get the sense that neither the people or the system is capable of this sort of corrective behavior.

I think that lots of bad things are happening in the US...

True.

...but stories like this make me feel like the US also has the ability to fight back against government and corporate bullying and stupidity.

That's true enough, as well.

I think that over the next 30 years a good deal of our problems will be due to change brought about by technology. And many of the solutions to those problems will probably come from technology as well.

I think we need you here.

Kudos to Stanford and the EFF. Maybe there are too many graduates coming out of the law schools these days, but cases like this show that we need every good counselor we can get.

Gillmore said "a federal appeals court has ruled that the company can't sue solely because someone possesses such equipment."

This may be a bit misleading, so I'd like to clarify what the holding really means. It means that a private party can't sue for possession of such devices, because the relevant section only creates a criminal offense, not a civil cause of action. This means that it's still a crime, but to enforce it, a criminal suit has to be brought by the government.

The main point is that it's still a crime just to possess such devices.

Trevor, which devices are criminal?

The devices for which EFF is seeking something like a presumption of innocence are used to program blank programmable devices, and were invented before DIRECTV existed. On the other hand, the press release mentions a couple of types of devices that are specific for pirating DIRECTV and have no other use.

Firstly, I'm not giving legal advice here, as I'm not a lawyer, just a law student. Don't rely on my statements.

That said, I can't say exactly what devices would be considered criminal without researching the statute in question and the case law, but the real concise and clear explanation of it is here, quoted from the decision Joi linked to:

The possession of a pirate access device is defined separately as a criminal

offense in section 2512(1)(b):

(1) Except as otherwise specifically provided in this chapter,

any person who intentionally –

...

(b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the

purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; ...

shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 2512(1)(b).

The plain language of these provisions addresses two distinct concerns. Section 2520(a) provides a civil remedy for the victim of the theft of an electronic communication. Section 2512(1)(b) provides a criminal punishment for those involved in trafficking devices used for the theft of electronic communications without need of proof that any person has yet been injured by that illegal commerce.

On its face, the statute (simplified a bit) states that if someone "knows or should know" that a device they possess is "primarily useful" for intercepting communications, they can be fined or jailed. Of course, it has to be related to interstate commerce though, for this to apply.

The main point here is "primarily useful," which would probably mean that if people are using it for many other purposes, it would not be covered. But just because something was used in the past for various other purposes doesn't necessarily mean that it is now -- it could be primarily used for ripping satellite TV now...

Pretty interesting. I never knew this was out there. ;)

Seems to me that the 1997 complaint said Directv stole programming from 1 million customers. I find it curious that Directv would now sue the victims of there own theft for the purchase of an access card purchased to receive the programming in which they paid for and Directv stole. To steal programming, one would have to take something they didn't pay for. Here, customers kept from being a victim and bought a card to keep what they paid for and owned.
It is a sad state when someone is sued for theft of there own property.

Unusual? Read it here:

http://www.cslib.org/attygenl/press/1998/coniss/directtv.htm

I was one of of those those in 1997 had the programming stolen by Directv referred to by the last poster. Knowing nothing about smart card programming I bought a card to stop the 1997 theft by directv. It was my programming which had been taken and under laws and the constitution I have the right to protect that programming from theft. 31 state attorney general's brought a class action against Directv for committing that theft and I was a member of that class action.
In 2003 Directv then sued me in federal court for the actions I took to protect my property. Actions to stop the theft when I purchased the access card. The card they sued me for buying I bought several weeks before the 1997 theft of my programming and bought in anticipation of the theft. In 2003 the justice system viewed this very differently then in 1997. Directv tried to apply the DMCA law retro-active back in time to 1997. While the following is in Black's law dictionary:
"According to Black’s Law Dictionary self defense is defined as "that degree of force which is not excessive and is appropriate in protecting oneself or one's property. When such force is used, a person is justified and is not criminally liable, nor liable in a tort.”

While the purchase of my access card, all subscribers buy there own access cards, was to defend my property, the basic constitutional right to protect and defend one's property now fall second to intellectual property rights.

If there is a chip inside your car the intellectual property owner is free to turn your car off at any time through the chip. Once turning the car off they can then demand more money from you. If you block them from turning off that chip, you just violated the DMCA and will be sued. It doesn't matter if you were protecting your own property. The US System of justice up holds this as well as I have found.


Black's law says if defending your property you cannot be held responsible for a tort? Not true any longer as I can attest to. Read the DMCA, no where does it say that you can block an electronic counter measure when the intellectual property rights owner makes your property useless through the control of the embedded chip.

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Based on arguments made by civil liberties group the Electronic Frontier Foundation (EFF) and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals today ruled that DirecTV cannot sue individuals for "mere possessi... Read More

Based on arguments made by civil liberties group the Electronic Frontier Foundation (EFF) and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals today ruled that DirecTV cannot sue individuals for "mere possessi... Read More

Based on arguments made by civil liberties groups, the Electronic Frontier Foundation (EFF), and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals this month ruled that DirecTV cannot sue individuals for "mere ... Read More

Based on arguments made by civil liberties groups, the Electronic Frontier Foundation (EFF), and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals this month ruled that DirecTV cannot sue individuals for "mere ... Read More

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