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What's Going on Here?

Smartcards are an important, and legal, branch of emerging technology, but satellite TV giant DirecTV has launched a legal campaign that threatens smartcard researchers and innovators. Over the past few years, the company has sent hundreds of thousands of demand letters and filed nearly 19,000 federal lawsuits in response to the mere purchase of smart card readers, emulators, unloopers, reprogrammers, bootloaders, and blockers. The satellite TV company accuses techies – some of whom threw out their televisions in favor of the Internet long ago – of using these devices to illegally intercept its signals. But the smart card readers and their various derivatives are capable of so much more: they secure computer networks, enable user-based identification, and further scientific discovery.

People who intercept DirectTV’s satellite signal are breaking the law. However, DirecTV’s cease and desist letter campaign does not distinguish the legitimate users from the thieves. This website is meant as a legal resource for the legitimate computer scientists, technology workers, and hobbyists who are being harassed by DirecTV's no holds-barred slash-and-burn legal strategy. This site provides scientists, researchers, innovators and their lawyers with the resources necessary to fight DirecTV and protect their right to own and use multi-purpose technology for its legal applications – and without fear of reprisal.

The Latest:

EFF files Amicus in DirecTV 11th Circuit Appeal

Electronic Frontier Foundation Media Release

For Immediate Release: Monday, January 12, 2004

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
+1 415 436-9333 x112 (office)

* EFF Defends Right to Own Smart Card Technology

Files Amicus Brief On Behalf of Public in DirecTV Appeal

San Francisco--Defending the right to own and experiment
with general-purpose technology, the Electronic Frontier
Foundation (EFF) today filed a friend-of-the court brief in
an Eleventh Circuit appeals case that will determine whether
satellite giant DirecTV can sue "smart card" technology
owner Mike Treworgy for simply possessing hardware that
enables him to program electronic smart cards.

Smart cards are computer devices that have a multitude of
legitimate purposes, which can also be used illegally to
intercept satellite signals. DirecTV has argued that mere
purchase of smart card programming hardware should
constitute proof that the hardware is being used illegally.

"Computer researchers, network administrators, engineers and
others are using smart card technology in ways that are
perfectly legal, yet DirecTV would have the courts adopt a
theory of guilt-by-purchase," said EFF Staff Attorney Jason
Schultz. "This is not only grossly unjust, it also
threatens to scare legitimate innovators away from an
extremely promising branch of technology."

In the lower court ruling, U.S. District Court Judge John E.
Steele agreed to dismiss DirecTV's possession claim in its
lawsuit against Mr. Treworgy, finding that the company does
not have the authority to decide who can legally own the
technology. DirecTV appealed, making this case the first
such dispute in the country to reach the appellate court
level.

"DirecTV is threatening innocent researchers, hobbyists and
others who have never intercepted a single minute of
DirecTV's transmissions," added Schultz. "This cannot be
what the law intends, and we hope the Eleventh Circuit will
send a strong message to that effect."

DirecTV has sent over 150,000 letters demanding settlements
of $3,500 and up from individuals who purchased smart card
technology. The company has followed this up with over
15,000 lawsuits claiming that mere possession of these
devices is unlawful. As a result, those caught in DirecTV's
dragnet have been forced to choose between paying for a
lawyer and paying for a settlement.

In response to the lawsuits, EFF has partnered with
Stanford's Center for Internet and Society to establish
DirecTVdefense.org, a website aimed at helping innocent
people defend their right to own and use smart card
technology.

Other References

This release

EFF Amicus Brief in DirectTV Inc. v. Mike Treworgy

DirecTV Defense Website Aids Users Caught in Legal Dragnet

DirecTVdefense.org

About EFF:

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at
http://www.eff.org/

Defendant Files Appeal Brief in 11th Circuit

Appellee/Defendant Mike Treworgy filed his appeal brief in the 11th Circuit on the "Count III" mere possession issue.

Oregon Professor Files Amicus In Support of DirecTV's 11th Circuit Appeal

Joseph Metcalfe, a professor at University of Oregeon School of Law has filed an amicus brief in support of DirecTV's 11th Circuit appeal over the 18 U.S.C. 2512/2520 issue. All Amicus in support of defendant are due 7 days after defendant files his brief, which is by January 5.

DirecTV appeals loss of Count III "possession" claim to 11th Circuit

DirecTV has appealed one of its Count III/Section 2512 losses to the 11th Circuit. Their appeal brief is here. The District Court order is here. Defendant's brief is due January 5th. No word yet on if/when the 11th Circuit will hear oral argument.

"Super DMCA" use in States

Recent reports from Florida indicate that DirecTV is now filing cases under that state's recently enacted "super-DMCA" statute. These state laws, primarily sponsored and pushed by the Motion Picture Association of America (MPAA), are purportedly intended to update state cable theft laws. In reality, they create dangerous new state causes of action that companies like DirecTV can use to harass people indiscriminately. Unfortunately, this law passed in Florida in the face of strong opposition by EFF, Public Knowledge, the consumer electronics industry, and many others. Similar laws will be introduced in many more states in the coming months, so stay tuned. Visit EFF's state super-DMCA resources page to find out whether the law has already visited your state. If you hear of DirecTV using these statutes, please write and tell us! State legislators need to know that this is how these statutes are being used!

Another win! This time in Western District of Michigan. From the Opinion (10/22/03): "McFadden has presented evidence showing that he purchased the device from White Viper with the intent of using it for something other than intercepting DirecTV's sattelite transmission. McFadden has also shown that he did not intercept or attempt to intercept DirecTV's satellite transmission. This evidence is sufficient to defeat DirecTV's claims." The docket is here.

Summary Judgment Granted in favor of End User in TX!

In a Memorandum and Order dated October 24, 2003, Judge Sim Lake of the Southern District of Texas, U.S. District Court GRANTED Summary Judgment in favor of Defendant Winston Bush and against DirecTV on all claims in its Complaint. DirecTV v. Winston Bush, Case No.: H-03-1765, Southern District of Texas, Houston Division. The final judgment is brief and to the point. Entry on freedomfight.ca

Leave to appeal in the Treworthy case

Leave to appeal in the Treworthy case (11th Circuit) has been granted pursuant to 1292(b). This appeal will test the question of whether mere possession of devices capable of intercepting DirecTV signal states a civil claim under 18 U.S.C. 2512, or whether DirecTV must prove actual interception. The docket sheet for the appeal is located here. No word yet on when the appeal will be heard.

New Class Action v. DirecTV

A group of California lawyers has filed a new class action lawsuit against DirecTV alleging vioaltions of Federal Racketeering (RICO) Laws based on their current End User enforcement campaign.

Check out the compaint under our "Case Files" section here.

South Carolina Court Dismisses DTV Cases based on "mere possession"

Check out the new postings on the Case Files page, especially the McKay case where the Court dismissed DirecTV's case because they failed to show that the Defendant did anything more than purchase smart card technology. Without evidence that a Defendant also had subscribed to DTV, had a DTV Integrated Receiver/Decoder, and a DTV satellite dish, DTV could not sustain their case.

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