DN $3500 demand

[sodusme]

There is no such thing stated that it only applies if you can prove the case. No section in law is based on only if you can prove it that it can be alleged. A case goes to court and the court decides if the defendant is guilty or not.


Its perfectly acceptable to allege that infraction as far as I am concern. If they are not successful than you as defendant will win.



GS2

Have you ever heard of someone bringing suit against someone for something they can't prove occurred? Your answer should be YES because you have heard of these cases. I still say they cannot "prove" (without forum posts and reseller panel channels viewed) that any circumvention took place. They can "guess" and they can make a "hypothesis" but that's not what a law is based on (at least its not supposed to be). Its based on "proof", and YES I realize they only have to prove 51% but its still guess work on their part. There is no logical way to prove that any circumvention took place based solely on a purchase of some codes.

That would be like me and you exchanging some PM's about you buying a login to a site. I sell you the login and maybe you don't use it (because you decided not to), maybe you c/p it wrong and it doesn't work, maybe it was for a buddy of yours, maybe the pass got changed before you could use it. Bottom line though without any record of you actually logging into that site I sold you what evidence exists that you did in fact log into it? None whatsoever. Now as an attorney looking to reap benefits from a lawsuit can I "guess" that you used the login? Of course I can. Can I make a "hypothesis" that you used the login? Of course I can. But regardless of all the guess work there is no "proof" that you did in fact use that login.

The same logic can be applied here.

Preponderance of the evidence is a scam IMO as I could allege any wrong doing I wanted against anyone by simply shifting the facts and outright misstating the facts. DN/Nagra is doing exactly that here by stating unequivocally that someone "used" a code when in fact that person may not have used that code at all.

[Gunsmoke2 - GS2]

One could argue though that the MS vs Datel case parallels this case in that it is very similar. Basically the EFF (Electronic Frontier Foundation) and their attorneys are arguing that section 1201 of the DMCA doesn't provide relief under "copyright infringement" based on the "use" or even "possession" of an item that permits the misuse of a copyrighted work.

I don't see the comparison at all. They are not addressing possession or use. They ( EFF ) state the following.

When correctly interpreted, section 1201(a) prohibits something else altogether: digital trespass upon intellectual property by outsiders who have no authority to “unlock” a copyrighted work without “breaking into” the work through circumvention. In other words, section 1201(a) protects copyright owners’ ability to demand and receive payment before granting the authority to decrypt, descramble, or otherwise circumvent the technological protection measures preventing access to their works. The DMCA did not empower copyright owners to prevent individuals who have legitimately purchased the authority to unlock their works from doing so, even when the copyright owner contends that such activity constitutes a breach of contract.

Basically they say when applied correctly in their opinion it protects copyright owners ability to demand payment before granting authority to decrypt or circumvent preventing access to their works. To me they are saying DN/Nag are correctly interpretating section 1201(1)(a) because the end user was not granted authority to decrypt or circumvent their access works without payment.



In the microsoft case EFF states that the purchase of lawfully purchase xboxes and third party memory cards does not violate the intent of 1201 but to say this equilivates that they say that lawfully purchase STBS with IKS codes control words that are design to circumvent their access works ( programming ) should also not be intent of the DMCA is not what they are saying.


They say that the third party memory cards do the same as microsoft's competing memory cards and they want to use the DMCA to protect their business and eliminate their competition. There can be a misuse there. There is no competition issue with IKS period. IKS does exactly what EFF say the DMCA was intended for to make it illegal to circumvent their technology by IKS control words.




GS2

[Gunsmoke2 - GS2]

Have you ever heard of someone bringing suit against someone for something they can't prove occurred? Your answer should be YES because you have heard of these cases. I still say they cannot "prove" (without forum posts and reseller panel channels viewed) that any circumvention took place. They can "guess" and they can make a "hypothesis" but that's not what a law is based on (at least its not supposed to be). Its based on "proof", and YES I realize they only have to prove 51% but its still guess work on their part. There is no logical way to prove that any circumvention took place based solely on a purchase of some codes.

That would be like me and you exchanging some PM's about you buying a login to a site. I sell you the login and maybe you don't use it (because you decided not to), maybe you c/p it wrong and it doesn't work, maybe it was for a buddy of yours, maybe the pass got changed before you could use it. Bottom line though without any record of you actually logging into that site I sold you what evidence exists that you did in fact log into it? None whatsoever. Now as an attorney looking to reap benefits from a lawsuit can I "guess" that you used the login? Of course I can. Can I make a "hypothesis" that you used the login? Of course I can. But regardless of all the guess work there is no "proof" that you did in fact use that login.

The same logic can be applied here.

Preponderance of the evidence is a scam IMO as I could allege any wrong doing I wanted against anyone by simply shifting the facts and outright misstating the facts. DN/Nagra is doing exactly that here by stating unequivocally that someone "used" a code when in fact that person may not have used that code at all.

Its up to the court to decide if they prove it or not. You saying they can't prove it is based on your opinion of what has to be proved in these cases.


You exchanging a login is not illegal so whether it was used or not would never come up. IKS has one purpose and that is to provide a way to illegal obtain programming. You saying you never used it and you can't prove it versus the fact you paid money for this illegal subscription is damaging as it is. The court knows its impractical that the plaintiff will actually be there to watch you use it so they will apply common sense based on the evidence whatever the common sense leads to.




GS2

[Gunsmoke2 - GS2]

From the EFF brief:

As the Ninth Circuit’s most recent DMCA opinion stresses, section 1201(a) only prohibits
unauthorized circumvention, and 1201 claimants bear the burden of proving that the alleged
circumvention occurred without authority.


This case requires the Court to fill that gap. Microsoft’s allegations rest on the flawed premise
that consumers who lawfully purchased Xbox 360 consoles and video games nonetheless violated
federal law by using aftermarket accessories manufactured by an “unauthorized” competitor. In fact,
as explained below, consumers receive the “authority” to circumvent (e.g., unlock) the products to the
extent necessary to use them for their intended purpose when they purchase the products, even when
that use involves “unauthorized” competing accessories.

Microsoft produces the same aftermarket product with the intent to unlock. This is surely not the case witk IKS. DN does not market IKS with granting authority to their programming with saying IKS competitors don't have their authority only their IKS does.




GS2

[alex70olds]

I mentioned earlier, that D!sh is using the ECPA to get judgements and damages not DMCA. This may not effect your discusions of proof, just wanted to clarify. They site 18 U.S.C. 2511 and 18 U.S.C 2520.

http://www.law.cornell.edu/uscode/text/18/2511

http://www.law.cornell.edu/uscode/text/18/2520

Attached is a recomendation for default judgement. It is a little different and does site forum posts and PM's. It is an educational look at how the court interprets the above sited sections of the ECPA.

Echo V Gonzalez Recomendation for Default Judgement.pdf

[sodusme]

I don't see the comparison at all. They are not addressing possession or use. They ( EFF ) state the following.






Basically they say when applied correctly in their opinion it protects copyright owners ability to demand payment before granting authority to decrypt or circumvent preventing access to their works. To me they are saying DN/Nag are correctly interpretating section 1201(1)(a) because the end user was not granted authority to decrypt or circumvent their access works without payment.



In the microsoft case EFF states that the purchase of lawfully purchase xboxes and third party memory cards does not violate the intent of 1201 but to say this equilivates that they say that lawfully purchase STBS with IKS codes control words that are design to circumvent their access works ( programming ) should also not be intent of the DMCA is not what they are saying.


They say that the third party memory cards do the same as microsoft's competing memory cards and they want to use the DMCA to protect their business and eliminate their competition. There can be a misuse there. There is no competition issue with IKS period. IKS does exactly what EFF say the DMCA was intended for to make it illegal to circumvent their technology by IKS control words.




GS2

No actually they are stating in a nutshell "how can you steal something you have paid for". Since the people using these controllers and SD cards have purchased subscriptions to the XBox service. The same could be argued here. If someone has subscribed to DN programming and in turn is "circumventing" it via another route they have paid for subscription of the copyright work. The EFF is maintaining that Congress had people who simply were stealing a copyright work without any compensation to the developers or company in mind when they wrote section (1201)(1)(a)

You are correct in that they are not addressing the issue of "possession" or "use" of the controllers and SD cards. The EFF is stating that the mere possession or use of these devices does not equate to circumvention of a copyright work. Again the same argument could made here. Codes do not equate to the circumvention of a copyright work.

When correctly interpreted, section 1201(a) prohibits something else altogether: digital trespass upon intellectual property by outsiders who have no authority to “unlock” a copyrighted work without “breaking into” the work through circumvention. (this is referring to people who have not subscribed or purchased the copyright work at all) In other words, section 1201(a) protects copyright owners’ ability to demand and receive payment before granting the authority to decrypt, descramble, or otherwise circumvent the technological protection measures preventing access to their works. The DMCA did not empower copyright owners to prevent individuals who have legitimately purchased the authority to unlock their works from doing so, (by purchasing a subscription to a copyright work you have effectively "bought" the rights to tinker with it) even when the copyright owner contends that such activity constitutes a breach of contract.

They are saying that the DMCA was not meant for people to not be able to "tinker" with a copyrighted work after "paying" or "subscribing" to said copyright work. It has nothing to do with receiving "payment" for anything other then the subscription or copyright work itself. After payment you are supposedly free to "tinker" and even "reverse engineer" the copyright work with some limitations.

[sodusme]

This actually sums up my post nicely:

This case requires the Court to fill that gap. Microsoft’s allegations rest on the flawed premise
that consumers who lawfully purchased Xbox 360 consoles and video games nonetheless violated
federal law by using aftermarket accessories manufactured by an “unauthorized” competitor. In fact,
as explained below, consumers receive the “authority” to circumvent (e.g., unlock) the products to the
extent necessary to use them for their intended purpose when they purchase the products, even when
that use involves “unauthorized” competing accessories.

If only I had read that before posting the above.

[Anubis]

No actually they are stating in a nutshell "how can you steal something you have paid for". Since the people using these controllers and SD cards have purchased subscriptions to the XBox service. The same could be argued here. If someone has subscribed to DN programming and in turn is "circumventing" it via another route they have paid for subscription of the copyright work. The EFF is maintaining that Congress had people who simply were stealing a copyright work without any compensation to the developers or company in mind when they wrote section (1201)(1)(a)

You are correct in that they are not addressing the issue of "possession" or "use" of the controllers and SD cards. The EFF is stating that the mere possession or use of these devices does not equate to circumvention of a copyright work. Again the same argument could made here. Codes do not equate to the circumvention of a copyright work.



They are saying that the DMCA was not meant for people to not be able to "tinker" with a copyrighted work after "paying" or "subscribing" to said copyright work. It has nothing to do with receiving "payment" for anything other then the subscription or copyright work itself. After payment you are supposedly free to "tinker" and even "reverse engineer" the copyright work with some limitations.

I am sure you could in the copyright holders lab. Outside of that I would say that is where the limitations aspect comes. Just my thoughts.
Anyway,it was just something that caught my eye and I was thinking.

[sodusme]

I am sure you could in the copyright holders lab. Outside of that I would say that is where the limitations aspect comes. Just my thoughts.
Anyway,it was just something that caught my eye and I was thinking.

LOL yeah you better be able to "prove" that is what you had mind and that is a discussion too lengthy I'm sure for this thread but it does exist.

I'll see if I can find a snippet of the code:

http://chillingeffects.org/reverse/

Its very complicated and like I said we could go on for pages concerning this so I won't muddy up the thread with my views on it. But just as a side note if you want to read up on it it does indeed exist.

I have no idea what criteria or circumstances have to be in place to claim this. I only know it exists. I do see where some companies are putting "clauses" in EUA's to prohibit reverse engineering. I'm not a DN subscriber so I couldn't tell you if their EUA reads that way or not? I do also see where "software" is covered now I would think that their signal would fall under the category of "software"?

[sodusme]

I am sure you could in the copyright holders lab. Outside of that I would say that is where the limitations aspect comes. Just my thoughts.
Anyway,it was just something that caught my eye and I was thinking.

See now this is B.S IMO:

You agree that you will not try to reverse-engineer, decompile or disassemble, nor will you tamper with or modify, any software or hardware contained within any receiveror Smart Card. Such actions are strictly prohibited and may result in the termination of this Agreement, disconnection of your Services and/or legal action.

But one could also argue that by using a "third party" receiver that you are not "first hand" anyways the one doing the reverse engineering. That you are simply using a third party device that may or may not be authorized.

consumers receive the “authority” to circumvent (e.g., unlock) the products to the
extent necessary to use them for their intended purpose when they purchase the products, even when
that use involves “unauthorized” competing accessories.

The word "consumers" implies that you are not the one doing the reverse engineering and you are still under your right to use the copyright work to its fullest extent even though the "competing" accessories are "unauthorized". So you are simply an "end user" in other words and not the one manufacturing or producing or marketing the item.

Its interesting wording and I find it very intriguing.

[sodusme]

Another interesting point is that in the letter it states:

....which provided you and your customers with unauthorized access to DISH Network television programming and computer software and decryption codes needed to descramble that programming without payment of a subscription fee to DISH network.

I see they are making a point of taking the "end user" out of the role of "customer" and putting him into the scenario of having customers himself. As if the end user were the one that facilitated this whole circumvention along with "his customers".

LOL what a crock.

[Nostradamus]

hmmm makes you wonder why warner Bros, and other networks and movie studios do not sue DN under the same pretense of copyright infringement for failing to secure their encrypted signal adequately to prevent unauthorized viewing

[ChillyWilly]

With all do respect, I think you guys are getting lost in the weeds here. With legal fees being what they are, there is no way DN can hire an attorney for $3500 or even $5000 and pursue these cases. I believe DN is letting the lawyer(s) keep 100% of all collectables; this is the only thing that makes sense. DN benefits by the anti-piracy scare publicity.

So, assuming the above is true, it is logical to assume the lawyer(s) will not waste their time on any endeavor that is not a slam dunk. Lawyers are also very adept at discovering assets of any possible defendant. Or simply put, if a lawyer has seen fit to sue, he most probably has a winning case, has researched the assets, and is filing in a state which has plaintiff friendly seizure laws.

Bottom line, if you received a letter, you have a real problem......but jmo

[ChillyWilly]

hmmm makes you wonder why warner Bros, and other networks and movie studios do not sue DN under the same pretense of copyright infringement for failing to secure their encrypted signal adequately to prevent unauthorized viewing

They are selling the ppv movies to DN and/or receiving royalties for same. So they may wish to keep that relationship in tact.

There was a case in Canada a few years ago where a cable company sued DN/BEV. They claimed by not securing their signal, DN/BEV enabled piracy, thus reducing the consumer base, and thus reducing sales and profits........

[dishuser]

They are selling the ppv movies to DN and/or receiving royalties for same. So they may wish to keep that relationship in tact.

There was a case in Canada a few years ago where a cable company sued DN/BEV. They claimed by not securing their signal, DN/BEV enabled piracy, thus reducing the consumer base, and thus reducing sales and profits........

no videotron went to the crtc not court