[Ecommerce] Web page on DirecTV litigation over smart card technology

[James Love]

http://www.directvdefense.org/

http://www.directvdefense.org/hunt/

  Why is DirecTV threatening innocent people?

     In the past year or so, satellite TV giant DirecTV has sent ominous
letters to an estimated 100,000 individuals, accusing them of purchasing
"illegal signal theft equipment" and "pirate access devices" and
threatening to haul them into court for stealing DirecTV. The letter
tells the unlucky recipients that the prospect of a pricey legal battle
will go away if they pay up, to the tune of $3,500 in most cases. Yet,
in too many cases, the receipients of the letters have never intercepted
DTV=92s signal. They merely possess smart card technology. Without proof
of a violation of law, DTV=92s unsubstantiated threats to sue are an abuse
of the legal system.

     DirecTV's campaign began with a series of raids on Internet Web
sites. Armed with Digital Millennium Copyright Act , DirecTV paid visits
to well-known online vendors like Whiteviper, took over their Web sites,
and went home with their customer records.

     Next, groups of DirecTV enforcers with euphemistic names such as
the "End User Development Group" started sending threat letters and
staffing the call center. The word to worried technology researchers and
customers: Pay now, or pay a lot more later in court -- possibly up to
$100,000.

     Most recently, DirecTV has been making good on its threats to sue,
even against people who expressly explained to DirecTV the legitimate
uses they were pursuing, such as scientific research or home-brewed
security systems. Undeterred, the company has brought nearly 9,000
lawsuits in federal district courts across the country.

     In its letters, DirecTV often makes an unjustified and dangerous
legal leap: that purchasing technology with a possible illegal use
(intercepting DirecTV's signal) is illegal, even if you haven=92t been
breaking the law by actually intercepting the signal. This "guilty until
proven innocent" campaign has presented a tough call for all the
non-pirates targeted by DirecTV: Pay thousands of dollars to stop
DirecTV's threats or face a long and expensive legal battle to prove you
are innocent.

     When innocent people end up paying corporate behemoths for crimes
they didn't commit, something is wrong.


Who's winning?

     By most reports, DirecTV has talked plenty of people into settling,
including some who never stole a second of signal. But so far, this
Goliath hasn't had a single meaningful win against an innocent end user
in court. It may be wise for people who=92ve been breaking the law by
stealing DTV to settle out of court. But for the innocent purchasers,
DirecTV doesn't have proof that they've ever intercepted a single
DirecTV program, and therefore shouldn=92t be able to win a legal case.

     The law prohibits stealing signals, not purchasing smart card
readers, and to prevail, DirecTV must have evidence of actual
interception. (Get the full legal analysis here.) But there's no
evidence against thousands of innocent users targeted by DirecTV. In
many cases, DirecTV is simply assuming that piracy is happening without
a single shred of proof.

     In the first substantive court decisions, just rolling in now, lack
of proof has spelled losses for DirecTV. A Michigan judge ruled that a
purchase invoice didn't look like proof to him when the defendant didn't
even own a DirectTV dish. (The judge granted a motion for
reconsideration when DirecTV produced evidence that the defendant had
purchased DirecTV equipment in the past.) In Florida, a court recently
threw out DirecTV's long-shot attempt to make mere possession of a
device illegal. And an Ohio judge dismissed a slew of cases in which
DirecTV lumped together 320 unrelated defendants in 44 complaints,
scolding the deep-pocketed corporation for trying to defraud the public
of proper filing fees.

     However, efforts to take DirecTV to task for threatening innocent
people and filing frivolous lawsuits have so far failed. A California
class action lawsuit against DirecTV for extortion lost in the first
round (it's now on appeal). Defendants have had little luck with
counterclaims even when they win a dismissal. And though the law would
allow DirecTV to recover its attorney fees if it ever won a case,
defendants don't recoup the money they spend on lawyers and court costs
no matter how innocent they are.


How can I protect myself?

     If you have purchased technology on DirecTV's suspect list for
legitimate use, here are some ways to strengthen your defense. These
measures probably won't keep DirecTV from sending you a threat letter,
but if you become a target they could improve your chances of getting
the company or a court to drop the case.

     1. Do not start subscribing to DirecTV. A judge has held that when
a defendant doesn't own the box and dish required to receive DirecTV
signal, it's not reasonable to infer that he used a device to pirate.

     2. If you were a DirecTV subscriber in the past, document why you
stopped your subscription and how you disposed of your box and dish.

     3. If you currently subscribe to DirecTV, don't change a thing. A
company official has testified that a sudden termination or change in
service spells likely guilt in DirecTV's eyes, and a judge may see this
logic.

     4. Do not patronize vendors who openly market their products for
the purpose of signal theft or piracy. DirecTV continues to subpoena
sales records from such sellers, and these will serve as the source for
threat letters in the future.


What do I do if I get sued?

     If you receive a threat letter, a threat letter with draft
complaint, or a lawsuit (a live complaint) from DirecTV, do take it
seriously -- but don't panic. You're in plenty of good company.

     1. Contact an attorney, preferably one with some experience in
these cases and admitted in the federal court district where you live.
We've compiled a list of attorneys currently taking DirecTV cases.

     2. Explore the resources on this site to find out more. Knowledge
is power.

     3. Think twice before you talk to DirecTV yourself unless you plan
to settle at the asking price. The people staffing the phone lines are
reportedly non-responsive to pleas of innocence from individuals without
legal representation.

     4. If you'd like to network, get support, or gripe, visit the
online forums discussing this campaign.

     5. Do not ignore DirecTV's letters. Experience suggests the company
will not go away, and you want to put time on your side. Missing a court
date could land you an expensive default judgment.


What do I do if my client gets sued?

     If you represent a defendant in the DirecTV end user campaign and
are new to the game, here are a few hints.

     1. Research the legal issues. DirecTV's claims and the statutes it
cites are complicated, but lawyers from the Electronic Frontier
Foundation and the Stanford Center for Internet and Society think that
any valid legal claim by DirecTV must include evidence of interception.
We've gathered the statutes and some analytic and strategic resources to
shorten the time it takes to get up to speed.

     2. Review the available case files to see what courts have done so far=
.

     3. Consider networking with attorneys experienced in DirecTV
defense through our list or other connections.

     4. Help expand our resources by sending relevant news and comments,
submitting your public documents for posting on the site, and
participating in our forum.


How can we stop DirecTV?

     The success of DirecTV's campaign rests on the premise that people
won't fight back. Show them that they're wrong.

     1. Join EFF to support the fight against corporate intimidation of
innocent individuals and help us defend all our digital rights.

     2. Contact your representatives in Congress to tell them that
DirecTV is abusing our legal system and the voters want it to stop.

     3. Tell DirecTV how you feel. If you're a DirecTV subscriber and
haven't purchased targeted technology, cancel your subscription and tell
the company you disapprove of its intimidation campaign. Spread the word
and encourage your friends to do the same.