The Stanford Law School Cyberlaw Clinic and the Electronic Frontier Foundation filed an amicus brief yesterday in the Ninth Circuit Court of Appeals, asking judges to uphold a lower court ruling and protect smart card and encryption researchers. DirecTV’s recent litigation campaign threatens legitimate research by seeking much larger damages than they should be entitled to under Federal law. If DirecTV’s position is adopted, individuals could face up to $100,000 in damages for unauthorized smart card use; the Clinic worries that legitimate smart card researchers may be deterred from doing their work out of fear of such large liability.
It is illegal to intercept an encrypted satellite signal without authorization, and Congress provided statutory damages for individuals who engage in such activity. In the case before the Ninth Circuit, DirecTV is not content with the $10,000 in damages already awarded to them under the interception provision of the Communications Act, but claims that the act of inserting a modified smart card into a DirecTV television receiver also constitutes “assembling” a pirate access device and, therefore, should entitle them to additional damages (up to $100,000).
The Clinic brief argues that DirecTV is misinterpreting the law and that Congress did not intend such behavior to count as “assembling” a pirate access device. Rather, 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.
Click here for a copy of the brief filed with the Ninth Circuit
Click here for a link to a website run by Stanford Center for Internet and Society and EFF which gives more detailed information about the DirecTV litigation campaign.