Federal Jury Hands Down First Conviction Under the DMCA in DirecTV Case

In U.S.A. v. Thomas Michael Whitehead, Case No. 2:03CR53 (C.D.C.A. Sept. 19, 2003), the U.S. Attorney for the Central District of California alleged that Whitehead purchased software code needed for reprogramming DirecTV access cards, paid a coconspirator to periodically update the code to circumvent current DirecTV security measures, and then used the code to reprogram DirecTV access cards, which he sold nationwide. In addition to charging Whitehead with conspiracy, and sale of devices to illegally decrypt satellite programming under 47 U.S.C. Section 605(e)(4), the U.S. Attorney charged him with violation of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. Section 1201(a)(2)(A): (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.

After a four-day trial, a jury found Whitehead guilty. He could now be sentenced to up to thirty years in federal prison and be required to pay fines of up to $2.75 million.

Whitehead was indicted in spring 2003 as part of the Federal Bureau of Investigation’s “Operation Decrypt,” aimed at individuals involved in the manufacture and distribution of software and hardware used to decrypt DirecTV and DISH network programming. While others indicted under the operation have plead guilty to similar charges, Whitehead is the first person to be convicted by a jury in relation to charges brought under the DMCA. A prior attempt by the government to convict ElcomSoft, a Russian software company that distributed software capable of circumventing technical protection of electronic books, under the DMCA ended in an acquittal in December 2002.

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