DirecTV uses smartcards and special readers to allow its
subscribers to receive the company's satellite programmes. A pirate
industry has grown up around this, involving the use of modified
smartcards and readers, which allow users to illegally intercept
the programmes.
Federal law makes it illegal to intercept satellite TV signals
without authorisation and also bans modifying or assembling
interception tools for sale or distribution.
In recent years, DirecTV has used this law to sue the sellers,
programmers and manufacturers of the cards, readers and programming
devices, and also those running websites that promote these items.
A few years ago, following the lead of the music industry, DirecTV
began taking direct action against the users themselves.
But the Electronic Frontier Foundation (EFF) and the Center for
Internet and Society Cyberlaw Clinic at Stanford University Law
School are particularly concerned about a case before the Ninth
Circuit Court of Appeals in which DirecTV is trying to sue
individuals for the interception of its signal as well as
modification of receiving equipment.
According to the EFF, DirecTV is claiming that a modification
takes place where altered smart cards are simply inserted into
standard television equipment. This, says DirecTV, constitutes
“assembling” a pirate device. The EFF calls it “double-dipping” –
punishing individuals twice for the same offence.
According to the Cyberlaw Clinic, if DirecTV’s position is
adopted, individuals could face up to $100,000 in damages for
unauthorised smart card use. The Clinic also worries that
legitimate smart card researchers may be deterred from doing their
work out of fear of such large liability.
The amicus brief therefore claims that DirecTV is overreaching
and that legitimate security researchers would be threatened under
DirecTV's reading of the law.
It argues that DirecTV is misinterpreting the law and that
Congress did not intend the insertion of a modified smartcard to
count as “assembling” a pirate access device. Rather, says the
brief, Congress wrote the assembly/manufacturing provision to cover
commercial actors – such as websites or companies – who actually
assemble or manufacture the pirate access devices and then sell or
distribute them to others.
The brief points out that courts around the country have ruled
against DirecTV on this issue and urges the Ninth Circuit to
determine that DirecTV can not recover additional damages under
this provision.
DirecTV is appealing against a lower court’s dismissal of its
claim for damages for modification of the equipment. The lower
court awarded damages in respect of the alleged interception.
"Researchers are constantly assembling, modifying, and building
smart card components in furtherance of scientific knowledge and
innovation," said EFF Staff Attorney Jason Schultz. "Congress
clearly meant to exclude these beneficial activities from any legal
liability. The court below understood this, and we hope the Appeals
Court agrees."
