Visiting Dignitary
I sincerely hope that no one is every taken to task for IKS.Originally Posted by Gunsmoke2 - GS2
While our Government would have you believe that the modernization of the Copyright Act is beneficial to end users and limits the liability, it still allows for statutory damages of up to $5000 per violation. Of course that's over and above anything that could be brought as a result of a violation of the Radio Communications Act...
where's kokes when you need him .... hahahhahahahahaahahahahahaha
retired Super Moderator
Umm, remember Beaver tv? DN worked in conjunction with Bell. I believe there was another case in the Ottawa region but can't remember if it was DN only and since it's the wifes b-day I'm not about to do some research.
Alex would probably have a better idea.
Visiting Dignitary
all of the providers have taken legal action against dealers in Canada, but I'm fairly certain that none have taken action against end users ...
Moderator
if the dealers that got busted had only been selling in Canada they might have remained safe from DN. I think DN would have a hard time though trying to sue someone for lost revenue as long as all they were doing is viewing in an area where DN is not allowed to sell their services.
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Visiting Dignitary
but BELL certainly can show damages, and that's what Stirlingsat was asking
Moderator
Ok I kind of misread it. and I really should have quoted Anubis as I was directing it more towards him and his comments.
but yep I agree the criminal aspect is much worse in canada then the possible civil thing. I do know of one guy who was taken out of his house on a domestic dispute and they also seized his indoor garden and illegal satellite gear. he had a number of charges up against him but I think it must have been some type of plea deal and charges getting dropped because I never heard any thing more about th incident
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Visiting Dignitary
But even myself charged as a dealer my personal fines were about $760 per violation while the company was about $1,240 per violation. Given that what would an end user received for lets say one violation ?
GS2
Visiting Dignitary
Nagra could sue for services in Canada only. DTV sued a dealer in Canada for selling grey market services in Canada and was successful.
[51] The main argument of the defendants, as I understand it, is that notwithstanding the applicability of sections 9 and 10 to DIRECTV's signals, because DIRECTV has no right to distribute or decode them in Canada, it cannot establish loss or harm from the defendants' distribution of them in Canada and thus cannot establish a right to engage the remedies in section 18.
[52] To some extent this submission mirrors the defendants' submission on the issue of whether the plaintiff has established irreparable harm or very serious actual or potential damage. In my view, the damage to the plaintiff lies in the effect of the defendants' grey market activities in putting the plaintiff in breach of its licence from copyright holders and the costs entailed in protecting against that breach.
[53] While the nature and extent of the damages may be at issue, I do not think it could be said that section 18 is inapplicable in the facts at bar or that its applicability falls below the level of a very strong case. It follows, of course, that similarly it would not fall below the standard requisite to an injunction of a serious question to be tried.
[54] Insofar as the issue of the constitutionality of sections 9 and 10 of the Radiocommunication Act are concerned, I am not satisfied that merely by raising the issue of the constitutionality and adverting to the observation of the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex et al., to the effect that the issue remains unresolved, the defendants have made an argument that attenuates the plaintiff's case below the requisite standards.
[55] Whether the activity implicated by sections 9 and 10 involve a violation of section 2(b) of the charter and whether, if so, section 1 justifies such a violation or limitation are questions of considerable magnitude and complexity. They are simply not susceptible to anything more than rank speculation on an application of this sort and must give way to a presumption that the law of the land is applicable and constitutional unless otherwise demonstrated.
[56] Insofar as the defendants' attack on the foundations of the plaintiff's claim founded in fraud is concerned, it is based on assertion that the constituent elements of fraudulent misrepresentation have not been met. The defendants submitted that those elements consisted of, (a), a false representation made by the defendant; (b), which is knowingly false; (c), which was made to deceive the plaintiff; and (d), which materially induced the plaintiff to act, resulting in damage.
[57] The defendants say that DIRECTV was not materially induced to act by the representations of the defendants and those representations did not result in damages to the plaintiff. In submitting that the plaintiff was not materially induced to act on the defendants' misrepresentations, the defendants submitted that the plaintiff knew or had the capacity to know that many of the additional receivers that were activated on Mr. Sandhu's accounts were not, in fact, connected to the same (or indeed any) telephone line and knew or had the capacity to know that his subscriptions were paid for by a Canadian credit card.
[58] The defendants say that on the basis of the evidence taken as a whole, a finding akin to what was found in R. v. Ereiser 1997 CanLII 11293 (SK QB), [1997] SJ No. 276 is appropriate. That finding is as follows:
DIRECTV, INC. is not licensed to broadcast in Canada and will not activate a Smart Card for anyone resident in Canada even though such person is ready, willing and able to pay the customary fee charged by DIRECTV. However, DIRECTV, INC. does participate in a thinly veiled scheme to circumvent the laws of Canada by accepting subscription fees directly from Canadians provided that they maintain a United States address. In the instant case, DIRECTV accepted numerous monthly fees paid by way of a Royal Bank of Canada Visa card. Presumably, it takes the position the activated Smart Card is located in the United States. From all of the facts, it is easy to infer that it clearly knows otherwise.
[59] The defendants submit that DIRECTV does receive significant revenues from the defendants' activation business and other similar businesses in Canada, and hence it has a motive to turn a blind eye to the practice of activations in Canada however they are obtained or structured.
[60] Relying on evidence that Mr. Sandhu's credit card used to purchase the programs subscription was Canadian and that Mr. Sandhu had a conversation with a representative of DIRECTV in February of 2000 and told him about his business, the defendants assert a basis exists to conclude that DIRECTV was not materially misled by the false representations but were complicit in the unauthorized distribution of their signals in Canada.
[61] The defendants also submit that the plaintiff has suffered no detriment flowing from the activation business. The defendants submit that as they have no customers in the United States, they were not taking from the plaintiff's pool of potential subscribers, and hence there is no loss but, in fact, a benefit to the plaintiff as they receive revenues from source they otherwise would be unable to access.
[62] The defendants question the currency and strength of the evidence of the plaintiff's liability or potential liability to the Canadian copyright holders and submit on the strength of Lee v. Li (2002) 2002 BCCA 209 (CanLII), 100 B.C.L.R. (3d) 291 (BCCA), that the prospect of future damages is insufficient to found a case of fraud.
[63] The defendants further submit that the evidence adduced by the plaintiff as to the loss relating to the subsidies it pays for the equipment and in acquiring the signals is unclear at best and may even result in a profit to the plaintiff, given that the equipment produces revenues that the plaintiff is not entitled to and would otherwise not receive. The defendants also argue that there is evidence that the cost of enforcement revenues is offset by the "profitable" recovery of funds from unauthorized end users.
[64] Counsel for the defendants contended that nowhere in the plaintiff's materials is there a substantive calculation of amounts lost to the plaintiff and the defendants are unable to challenge the bare conclusory statements of the plaintiffs or to look at offsetting revenues. The defendants submitted it cannot be said that there is a strong prima facie case of fraud for want of adequate evidence of either reliance or loss and, for the same reasons, there is no serious issue to be tried.
[65] I do not think that the defendants' arguments on these points can prevail. There is a body of evidence that the plaintiff has instituted specific measures and taken affirmative steps to prevent activations and fraudulent activations in Canada. There is no doubt that if the defendants did not misrepresent where the subscribers lived and what the subscriptions related to, the plaintiff would not facilitate the reception of signals through activation.
[66] Whether the defendants' scheme could have been discovered and shut down earlier may be an issue for trial, but on the evidence before me, it does not reduce the strength of the case below the requirement of a strong prima facie case or a serious case to be tried.
[67] Similarly, while the actual damage that is suffered by the plaintiff may be inchoate or difficult to quantify, there is substantial evidence that the plaintiff has suffered a real risk of harm to its own economic interests by acting on the misrepresentations of the defendants. In particular, DIRECTV is exposed to lawsuits by Canadian copyright holders and to prosecution under the Radiocommunication Act.
[68] If it were to be found complicit in the defendants' activities through inaction or turning a blind eye, it could also be exposed to a lawsuit from the Canadian copyright holders based on the fraudulent representation that it served only subscriptions in the United States. Even if it not complicit, DIRECTV may have to account to the Canadian copyright holders for the revenues generated by the grey market operators to which it is not entitled.
[69] As I see it, while the actual damages or detriment may be difficult to quantify, there is a strong case of a clear risk to the plaintiff's economic interest founding its action in fraud and justifying some form of relief. The evidence in this case is unlike that in Lee v. Li, as in that case there was a finding that no one had acted on the document said to constitute the fraudulent misrepresentation, and hence the tort was anticipatory only. Here the plaintiff has acted on the misrepresentation by activating the subscriptions at issue.
[70] The defendants argue that even if there could be said to be a sufficiently strong prima facie case or a serious case to be tried, the plaintiff's case falters on its inadequate evidence of irreparable harm in relation to the injunction order or "very serious" potential or actual damage to the plaintiff in relation to the Anton Pillar order.
GS2
Last edited by Gunsmoke2 - GS2; 06-06-2015 at 05:35 PM.
Visiting Dignitary
Continued.
[71] On this ground, the defendants rely upon the same asserted deficiencies in the evidence as they did in contending at that there was little or no evidence of damage to found a claim in the tort of fraud. The defendants concede, and properly so, that the plaintiff has an obligation to remediate against unauthorized use of its encrypted signals in Canada in order to protect the holders of the Canadian copyright to the programming and not to be in breach of the Radiocommunication Act.
[72] Against that backdrop, however, they assert that when carefully analyzed, the plaintiff's claims of loss and damage arising from grey market activity are at best tenuous and simply do not justify a finding of either irreparable harm or very serious actual or potential damage.
[73] Not all harm or damage is quantifiable in monetary terms. The harm which the defendants' activities in the Canadian grey market exposed the plaintiff to flow from its legal responsibility to act within the boundaries of the licence granted to it, to not encroach upon the markets of other copyright holders, to avoid breaching statutory proscriptions and to establish a reputation in the industry conducive to maintaining and expanding its commercial relationships.
[74] It is manifestly not in the plaintiff's economic interest to be consistently breaching the licence granted to it, encroaching on other's markets, breaching statutory conditions or tainting its reputation in the industry. Findings such as those in R. v. Ereiser that DTV "participates in a thinly veiled scheme to circumvent the laws of Canada" put the plaintiff's economic interests at risk. It follows that the defendants' and other's use of the plaintiff's signals in a way that is inimical with the plaintiff's contractual and statutory responsibility creates, in the absence of effective preventative action by the plaintiff, a very serious risk of harm which cannot necessarily be quantified.
[75] I also conclude that the harm to the plaintiff is irreparable, as it would be difficult if not impossible to gauge the ongoing or future effects of exposing the plaintiff to the harm at issue, and damages would therefore be no adequate compensation. As noted in RJR-MacDonald, "irreparable refers to the nature of the harm suffered, rather than its magnitude." It includes "permanent market loss or irrevocable damage to its business reputation."
[76] In this case, the balance of convenience clearly favours the plaintiff and not the defendants, whose interests at stake appear on the materials before me to be proscribed by statute and in violation of the copyright of others, in other words, to be unlawful.
GS2
Last edited by Gunsmoke2 - GS2; 06-06-2015 at 05:37 PM.
Senior Member
I know some people who were modifying DN receivers, in Canada. Getting sued for $10 million. They're on Satscam page.
DN uses Canadian lawyers/private investigators to do their work over here.
Visiting Dignitary
The fact that BELL can show actual damages I would venture to guess that any judgment would be based on whatever the top subscription rate is times the number of months they can show you were engaged in pirating their signal, plus legal fees and court costs. So in theory it's hardly worth BELLs while.
Then there is 18. (6) of the RadioCommunications Act ....
Junior Member
Hey all, it's been a couple of months since the first EXTORTION letter from a law firm in Houston and haven't heard or received a second letter. I had some people research this firm and the talk was they are bottom feeders in their area. So my take is if you initiate contact with them if you get the letter then your chances of getting another letter if you ignore them is higher. I decided to ignore the letter and started to plan on a defense but have not been contacted again. They are fishing and if you take their bait it may cost you 3k..... my situation was a single PP transaction over 3 yrs ago, no PM's or any other emails....
IF I do receive a second letter I will update, Thanks for all the input!
Member
If it was over three years ago, they are just trying to scare you into responding. Once you respond, they have you and can proceed with prosecution. I received and e-mail after the Wolfman debacle. Never responded. There was no follow-up. Good luck!
Visiting Dignitary
They sent you an email ? A demand letter by email ? I probably would not respond to an email also but would not think they would be sending letters by emails.
GS2
Member
They got my e-mail from Wolfman and where trying to get me to respond, due to the fact I had not purchased from Wolfman for over a year or so. They where trying to get me to admit guilt by responding to their correspondence!!!
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