DirecTV Sues Anyone Who Bought Smartcard Reader?

MImeKillEr writes "The Register is reporting that DirecTV is suing anyone known to have purchased a smartcard programmer, regardless of whether or not they're actually using the device to enable stealing their programming. They're sending out letters & when people call to clear up the confusion, DirecTV is demanding a $3500 settlement as well as the programming device. They've filed 9000 federal lawsuits against alleged pirates thus far. They're obtaining lists of who purchased the devices during raids against the sites that offer them for sale."

Comments

BARRATRY!

[Grendel Drago]

So... they're demanding to sue en masse like this? Using lawsuits and demanding massive settlements? Isn't this the definition of barratry---abuse of the legal system for extortion? If so, do smartcard reader owners have the basis for a class action?

--grendel drago

Re:BARRATRY!

[imaro]

Seems like people would have an excellent suit in response to false claims. If the device was not used to facilitate an illegal activity, then its libel/slander. You could atleast go to court for emotion damages, and a judge would probably make the defendent pay lawyer's fees for the victim.

Re:BARRATRY!

[kscheetz]

A class action has already been tried and thrown out .From the article:
To California lawyer Jeffrey Wilens, DirecTV's whole end-user campaign smells of extortion. Wilens filed a class action suit in Los Angeles last year accusing the company of exactly that. "Realizing that they don't have a legal position, they're just trying to use heavy-handed tactics to intimidate people, just like the record industry is going to be doing in the very near future," says Wilens. "At least the record industry will target people who `did it', instead of `could have done it.'"

But Los Angeles Superior Court Judge Charles McCoy disagreed, and in April dismissed the suit, ruling that DirecTV's demand letters were sent in connection with litigation, and were therefore legally privileged. The judge also awarded attorney's fees to DirecTV, putting Wilens' seven plaintiffs on the hook for a total of nearly $100,000 in law firm billables.

Re:BARRATRY!

[Carbonite]

If the device was not used to facilitate an illegal activity, then its libel/slander

I don't believe you're correct. The definiton of libel is:

1a. A false publication, as in writing, print, signs, or pictures, that damages a person's reputation.
b. The act of presenting such material to the public.
2. The written claims presented by a plaintiff in an action at admiralty law or to an ecclesiastical court.

Slander:

1. Oral communication of false statements injurious to a person's reputation.
2. A false and malicious statement or report about someone

DirecTV doesn't seem to have committed either crime. However this might be considered malicious prosecution:

Malicious prosecution is a common law intentional tort. While similar to the tort of abuse of process it is the misuse of a prior legal process (civil or criminal) that is dismissed in favor of the victim that was brought without probable cause with intentional malice by the defendant.

Re:BARRATRY!

[BigBadBri]

Plenty.

We got one at work a while back, with a view to using them as a simple way of storing data for prepopulating and entry form for an application.

And yes - the same kit could be used for Satellite TV cards.

The proper course of action is to let them take you to court, then contest it on the basis that they have to prove that you have used the equipment to 'steal' their service.

IMHO. if they can't pay for their service through advertising, they're onto a loser, since it is almost always cheaper to circumvent protection measures than it is to pay exorbitant subscription fees.

Leeches.

Re:BARRATRY!

[Anonymous Coward]

A letter asserting that you have stolen sattelite tv because you own a smart card programmer potentially fits several of the items you list because:
1) Owning a smart card programmer absolutley does NOT mean that you stole a signal any more than owning a car is indisputable proof that you are a drunk driver, so the letters that have been sent to people do contain false statements.
2) Being accused of a felony IS damaging to a persons reputation.

Re:BARRATRY!

[stonecypher]

If you have a legal use for such a product you shouldn't buy it from someone who is specifically advertising it as being illegal.

I don't care if things are 'advertised' as being illegal. If I buy a crowbar because someone says it can be used to break windows and steal cars, and I use it to tear down a wall I don't want in my house, is that illegal?

IANAL, which nobody seems to remember to mention anymore. 's pretty important; I could be blatantly misunderstanding something here, as it's clear that at least a quarter of the remainder of the discussion is.

This argument loses a lot of steam when you attempt to complete the metaphor. What legitimate purpose did these decoders serve? The argument might better be made using a device which is contextually generally for the Dark Side; a slim jim, electric lockpick, or tumbler breaking tools might be a better choice. The locksmith, the AAA guy, and the police officer have good reasons to have these things. The dude in the fake ninja getup in the industrial slums has a germane bit of explaining to do.

What I'm wondering is how DTV can sue for descramblers. Traditionally they've been legal, because once the end-user buys the device, it's theirs, and they may do with it as they please. Same as Mod Chips, flash cards for game platforms, VCRs / PVRs / tapedecks / DVD burners / CD burners, third party debuggers, etc. There's nothing wrong with it until you do something wrong with it.

Is the hardware leased? Is there some kind of end-user contract? Does one of the new laws (DMCA, SSSPCA, USPSKFC, whatever) change the way this is seen in court? Help me understand what they're actually accusing of, in specific, rather than topically.

I can very easily see the argument for a suit against the manufacturers of the item - priove black box reengineering, etc - but Compaq started a clone market with this sort of behavior. And besides, if Compaq *had* been in the wrong, since when would it be the user's fault for buying a device that at the time was legal?

Or, there's the TV Piracy suggestion. Two words: prove it. That's the only claim here that I understand, and it's not certain. You can't sue for maybe.

There are dozens of laws against using the legal system to cow the populace; more clueful slashdotters will bring them up (I've already seen barratry, extortion, and I'm expecting conspiracy or collusion or whatever they perenially accuse airlines of in price fixing soon...) It seems that, in the light that DirecTV has little actual wrongdoing in hand, there ought to be a class action or something similar in rebuttal.

Then again, apparently they've been overturned already, so I've obviously missed some serious detail. Guh?

Re:BARRATRY!

[TheCarp]

However it can only damage your reputation if it is public. The threatening letter is sent specifically to you by the party who is accusing you (or a duely authorized agent in their name) - it is not apublic declaration.

Now, if they published these letters on their website, or released the names of all the people that they were accusing to the local paper, that would fit.

Basically...if I ring your doorbell and when you answer I tell you "I think you are a souless satan worshipping ballbag" thats nothing (well maybe harrassment or tresspassing if I don't leave when you tell me to).

but if I go to your neibors door and when he answers I tell him you are a soulless satan worshipping ballbag...thats slander.

If I take an ad out in the paper and tell the readershoip that you are a soulless satan worshipping ballbag... thats libel.

See? :)

-Steve

Re:BARRATRY!

[Lershac]

"There is no question that the items in question are pirate devices."

Yes there is. The device is used for legitimate purposes. If DirecTV wants to eliminate the doubt, they should use a proprietary technology or card design. They use an open standard that is in use in other industries and then wonder when people can get their hands on equipment to steal it? That is (somewhat) like using philips head screws to secure your home and then not expecting anyone to have a philips head screwdriver.

Lovely slashbot crying. Everyone is suddenly a legitimate smart card hacker and not a thief. Sure. Whatever.

There you are dead on.

Re:BARRATRY!

[Jardine]

No, some people own parrots and aren't pirates at all, so there goes that too.

That's just what they want you to think.

Re:BARRATRY!

[Arker]

Well I for one would be happy to pay for advertising-free TV.

But the greed here is incredible. Where do people get this notion that they have a legally enforceable right to make a profit off a bad business model?

DTV has several options as I see them. They can write off the 'pirating' as inevitable and ignore it, concentrating on sucking the honest customers dry. They can change their offerings to compete better with the 'pirate' offers. Or they can use cartooneys to threaten everyone in sight hoping this will somehow make them more money than it costs.

Apparently they're choosing door number 3, which I think is pretty dumb, but not surprising really.

If I were them I'd try something a little more creative. What is the draw to the 'pirate' cards? You get access to whatever channels you want, for a one-time fee, instead of paying out the ass for the super-deluxe top of the line package every month just for the one channel you actually watch, am I right?

Plus there is the element of everyone wanting to feel like they're the smart one, getting the forbidden fruit cheap while the other chumps pay big bucks month after month... I'm sure that's an element.

Now remember, these 'pirates' are paying, they're just paying lump sums instead of recurring fees, and they're paying them to someone else. That's the problem, from DTVs point of view, if they would just look at it clearly.

So, what I would do if I were them, is just start a little subsidiary. Hide the ownership, yo don't have to do anything illegal, just the kind of obfuscation any corporate lawyer or accountant knows how to do, so that it's not obvious. Have this little subsidiary get into the pirate card business. Have your techs working on breaking pirate cards, of course, as they've done all along. But have your techs and your subsidiary work together, so that most of the time when you break the other pirate cards those sold by your subsidiary don't break. Still break them sometimes, of course, so you get a round of upgrade sales, but make sure your own cards get the reputation for being the ones that usually don't break.

Pretty soon, not only are you getting the regular fees from your ordinary subscribers, you also own the pirate decoder market as well. Now remember, they're working in a market where most of the costs are fixed. It costs them the same amount to run that programming whether they have 1 subscriber or one million subscribers. They have the exact same costs whether there are no 'pirates' or 10 or 100 or a million as well. So this extra income is pure gravy.

Re:BARRATRY!

[ReaperOfSouls]

Let's see. Guns are designed to kill things, but everyone has a legal right to own one.

Actually no. Guns are designed to fire projectiles out of a barrel at high velocity. Guns can fire many forms of non-lethal forms of munitions like rubber or spongy bullets. The question is intent and action. If I kill, injure or threaten for non legitimate purposes such as self defence, then throw the book at me. If I use the weapon in self defence, for hunting, sport shooting at a gun club or any ligitimate reason defined under law, you cannot criminally or civially try me since I have not commited a crime.

However, buying a smartcard reader means you were going to steal TV programming, and the consequences are more severe. I don't get it.

So does that mean if you own a computer with a cdrom that you should be tried for intelectual property infringement? You could rip the cd and distribute the music. Well if you have not actually committed IP infringment, then no. The point is you cannot be tried for commiting a crime that you have not commited yet. Smartcard readers are becoming more and more standard in devices. To modify what the readers see you need a programmer. Smartcard programmers are multi purpose devices just as a CD-RW are. What gets put on them is what makes things illegal or not.

does prior restraint fit into all this? I don't know the first thing about law but this concise explanation seems to indicate so.

Prior restraint is a description of a law that tries to impose sanctions on an activity to fetter it before it happens. There is one law in this case that could be applied here: DMCA. In general as DMCA is used more to procecute people who use technologies for fair use, it will eventually be either be striken from the books or ruled unconstitutional(theres always hoping).

As for the rest of the essay it is highly critical of prior restraint as afront to liberty as indicate by :

The inexorable consequences of prior restraint, where employed outside the bounds of the doctrine of limited government, are simply an unwise and needless loss of liberty.

Target card

[gouldtj]

Damn it! I knew I should have read the fine print when I applied for that Target card - but I didn't realize it was going to cost me $3500! Get a free smartcard reader

CD Burners

[LauraW]

Next thing you know, the RIAA is going to sue everyone who's ever bought a CD burner. People might be using them to duplicate music CD's, after all, and that's (gasp!) illegal.

-- Laura

Re:CD Burners

[rootofevil]

yea, and if you got anything faster than a 1x, say a 52x theyd sue you for having 52 cd burners, like the BSA claimed to find.

This happend to my uncle

[miyako]

I don't know all the details, but I know that they tried to sue my uncle a couple of months ago for that, apparently he made a call to his lawyer and a couple of weeks later they had dropped the suit.
I don't know all the details but if it is the same thing as it sounds, then I don't think people have a lot to worry about.

Re:Great!

[BarryJacobsen]

Of course it can wait. No Senators get paid off when a murderer goes to jail. But if a company makes money, then everyone* profits!

*Your definition of everyone may vary from that of the US Senate and Large Corporations

In other news...

[stmfreak]

...Kwikset is suing everyone who bought paperclips and thin blade flathead screwdrivers in the last fifty years.

Realizing that their locks can be circumvented with a modicum of patience and the above mentioned tools, Kiwkset raided sales records at local home and office supply chains to locate citizens who had purchased paperclips and screwdrivers. Citing that no one who purchased the two items in the same month could possibly be up to any good, Kwikset sent out cease and desist letters to approximately 40,000 citizens demanding that they turn over the screwdrivers and paperclips to local authorities.

Legal extortion.

[wayward_son]

This works because lawyers are expensive. To the average person, the legal fees required to fight it are greater than the settlement.

So, in effect, what DirecTV is saying is "Give us $3500 or we will sue you." It doesn't matter if they have a case or not. They get $3500 or you pay more in legal fees.

Actually, this is more like Tony Soprano's business model than anything.

Re:Legal extortion.

[Anonymous Coward]

Can anyone explain, why lawyer is required? Why person can't simply go to court and state his/her case before a judge?

Can anyone explain why programmer is required? Why person can't simply go to computer and state what he/she wants application to do.

Re:Newsflash:

[Xciton]

Actually, there is NO difference what so ever between the two.

Reader=Programmer
Programmer=Reader

A smartcard reader/programmer is nothing more than a voltage converter attached to a serial port.

The act of sending a command to the ISO card to get a response is the same as programming it. You either ask for a value in return, or you store a value in a specific location. The protocol method is the same in both cases.
There is no "high voltage" eeprom line to enable programming it (in this case at least)

The big difference is a DUMB ISO programmer (where the data lines are controlled by the PC) and a smart programmer where they have protocols embedded in the hardware ISO programmer to conform to ISO protocol standards. That's a different case all together...

I want to care, but the victims don't!

[Anthony Boyd]

When he called the company to clear things up, he found they weren't interested in his explanations: they wanted $3,500 and the smart card programmer, or they would literally make a federal case out of it and sue him under anti-piracy laws. "I didn't know what to do, I was completely flabbergasted. So I sent the money in," says Sosa.

You know, people like Sosa make this really difficult. DirecTV is doing something unethical, I believe. People are getting wrongfully accused in my opinion. But Sosa just rolled over and paid out $3500. These people are a problem because they help a bad system to stay bad. It makes it terribly difficult for me to have sympathy for someone who has such a lack of conviction, such a failed sense of justice. They don't care. Should we?

Unfortunately..

[SpaceTaxi]

...it appears that abuse and extortion are what our legal system is all about. Its not about justice, its about who has the deeper pockets.

"Send lawyers, guns and money..."

Re:Unfortunately..

[DocMiata]

DTV uses other lies to "extort" money out of their legitimate subscribers as well.

A friend of mine got laid off for a few months, and couldn't pay her DTV bill for the 4 legit boxes she had purchased and used in her home. When she got back to work and decided to have her service restored, she called DTV and the customer service rep. told her she'd have to pay $20 each for new smart cards (times 4 boxes) before they'd restore her service. She informed them all of those boxes were working *before* they cut her off, what changed? Once she got hostile with the rep. he admitted she really didn't need new cards and turned her service back on. I wondered then how many other folks paid the $20 per card just to get service back? (Note this was in addition to the "reconnect fee" she did have to pay.)

Re: The bastion of freedom and democracy

[gizmonic]

Here is your list:

Website for targetted consumers

[jvbunte]

http://www.legal-rights.org is the best source of information if you are a target of a DTV tort letter or potentially sued by DTV.

DTV sent out thousands of letters asking for the end user to settle out of court for $3500.00. If you ignore the letter, DTV sues you for $10,000.00 and gets a default judgement if you ignore that. Your best bet is to educate yourself (legal-rights.org, excellent place to start) and consult an attorney. A list of experienced attorneys is listed at legal-rights.org who have specifically dealt with these cases.

Re:I'm sorry...

[einTier]

Right. They are suing these people in Federal Court. I am good friends with a lawyer handling the defense for several of these cases. Right off the bat, he's asking for for $3,000 in retainer fees. He anticipates actually fighting the whole thing out -- assuming no one settles -- could easily cost over $10,000 for his clients. Again, that's if no one bothers to appeal.

Some are fighting because DirecTV wants an admission of guilt, and some are fighting because they have ordered so much stuff, DirecTV's 'settlement' offer is still in the millions of dollars. Last, a few are fighting because they have the money (Dellionaires) and are fighting on priciple alone. However, for most people, simply paying the $3500 and walking away makes a lot more sense than fighting.

For the record, all of these lawsuits have been thrown out in California, and thrown out in such a way that they cannot be resubmitted by DirecTV. Apparently, the judge was offended by the audacity of the lack of evidence. The people who settled prior to the ruling have filed a class action lawsuit against DTV. One man has won his court case in Michigan (I think that's where) and all the other cases are still pending or have been settled out of court.

Welcome to the New World Order

[AllieA]

Isn't it "nice" to be living in the US while seeing a steadily increasing move towards arresting/detaining/suing people who "might" commit a crime, instead of actually waiting until they commit it?

And you don't even have to threaten to do so anymore. All you need to do is have the ethnicity/equipment/political affiliation that labels you as someone who "could" commit a crime.

I have an MP3 player at home and MP3's on my PC, so I *MUST* be downloading copyrighted music.
I have a CD Burner in my laptop, so I *MUST* be copying software.
I am not a Republican, so I *MUST* be engaging in sedicious activity.

And alot of people/politicians/companies seem to be jumping on the through crime/preventive detention/suing before the fact bandwagon these days.

Scary indeed.

I know this was a joke

[Sycraft-fu]

But since this is a common misconception:

It actually won't interfere, criminal and civil court are seperate. You can clog up the civil court system with frivilous lawsuits, but the criminal system remains seperate.

Its about the intent.

[dmeranda]

Clearly these suits are not designed to go to court; they are designed to get people to turn themselves in and get these devices off the street. US$3500 is too cheap for anybody who really is guilty by intent to take it to court. And the "guilty" probably are the majority of the people who bought from those sites.

Of course the problem is those who are innocent. Courts have shown in the past that if you buy a device like this with the intent to perform a crime, then you are guilty even if you didn't carry through on that crime. And as the sites advertised as such, showing that was your intent is much easier.

However there are very legitimate uses for these devices, just as the article shows, and innocent people will get caught up in this. Just because the site may advertise this device as being useful for cracking DirecTV, I may very well buy it for other purposes if the price was cheap. Think about someone selling hardened-steel axes for $5.00 with the advert "You can chop down your neighbor's door with this!"...but at $5.00 I would probably buy one to cut my firewood. If it's not inherently an illegal device (which smartcard programmers are not) and my intended use was not illegal then I did nothing wrong. My intented use doesn't have to match that of the advertiser.

Until this point I've actually respected DirecTV's anti-piracy approach; mainly by counter-hacking and outsmarting the illegal crackers. But now they are going to snare a lot of innocent folks in an expensive legal trap, and setting a bad example for other corporations to try. The innocent should be able to beat this without too much effort, but it will sadly cost them a lot of money and time to prove their innocence.

Re:Great!

[laugau]

You know what's funny is that we can go to prison for getting free cable and sattelite where we are punished by getting free satellite and cable.

Take it from someone who knows

[n0cturnal79]

Yes, I have been served with papers, and trust me. . . this whole thing sucks.

I was served at work, where i am a unofficial IT guy, with my fellow co-workers looking on as if i were a dangerous criminal. (Embarassing does not even begin to explain the feeling.) My first reaction was, WTF is this? I have never been sued before, i have never been in any kind of trouble before, hell, i have not had a speeding ticket in over 10 years. . . . but low and behold, here was a document stating that i am being sued for $120,000 by a company that i have been a long standing customer with for many years. As i read on, i found out that it was for a Smart Card Programmer. Once again that WTF feeling came back. . . . I purchased this equipment over 2 years ago for a security project that never got off of the ground. A company that i worked for wanted a better way to keep control over who used the company network, i found some info on smart cards, did a search for "smart card programmer" and purchased the cheapest unit i could find. (about $160 if memory serves me correctly), Only to find out that it would not work for what i wanted to do. And now im being sued! And as i said earlier, i am a DTV customer, have been for 6 years. If i were going to hack TV cards, you would think that i would do mine first!

Just to make one thing clear, I am a poor guy, And as a poor guy, there are not many options for me to take. Anyway, i dont want to rant about this, however i believe that it is a great injustice. This is just extortion, plain and simple. I was told that i could settle for $4,500 before i went to court, or $10,000 after the court process had began. Alternatively, i could fight it, and the cheapest lawyer would be on the average of $15,000 by the time it is all over. Obviously, not a "poor boy" option. And since it is a civil case, i am not entitled to a court appointed lawyer. So the only option left for me is to fight it myself. Which, if any of you have ever looked into the paperwork involved in a Federal Civil Case, looks like i have just over a snowball's chance in hell.

So if i go to court and loose, by law, they can take what little i have, and then some. One option that they could take is garnishment, and being that this is a Lawsuit for damages, they could take a chunk of my pay check for the next 25 years! I only make $12 an hour now, and have a wife and 2 kids, so this is not a good thing for a person who is just barely making it. This Lawsuit is designed to crush people like me so that people who have the money to pay the ransom, will do so.

Re:A few facts from the article

[Datafage]

Defending yourself against baseless lawsuits is very expensive and time-consuming. Those who were not stealing sattellite TV signals had their lives greatly disturbed. DirecTV suing a large group of people with no basis other than posession of a device that could possibly be used to steal signals is nothing but abuse of the legal system and I hope they get taken to task for such tactics.