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'Double-dipping'

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Legitimate researchers need protection from the heavy-handed tactics of US satellite TV provider DirecTV, according to two digital civil rights groups which filed a friend-of-the-court brief with a US Appeals Court on Wednesday.

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."

See: Friend-of-the-court brief (36-page / 528KB PDF)

Copyright © 2005, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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