Copyright 2004 The Atlanta Journal-Constitution

The Atlanta Journal-Constitution

March 10, 2004 Wednesday Home Edition

For decades, cable operators have been bedeviled by viewers who illegally intercept their transmission and don't pay for it.

But in the never-ending war on piracy, the cable industry may finally have something to take delight in: The competition also is getting ripped off.

DirecTV, the California-based satellite TV company, has undertaken an aggressive nationwide campaign against viewers using high-tech gadgets to watch its pay TV for free. The company has sued thousands of people — including hundreds in Georgia — as it tries to combat those who think nothing of stealing their signal.

The tactics, similar to those used by the music industry to fight illegal downloading of songs, have attracted attention and derision.

Some say the company is strong-arming individuals to pay thousands of dollars to avoid a court battle. Others claim DirecTV is encroaching on civil liberties.

DirecTV says it's simply defending its business. The company notes that it loses $204 per month for every individual using a pirating device.

"The point is to deter piracy and get the point across that that activity is theft, and you can get caught, and there are consequences," said DirecTV spokesman Robert Mercer.

The law, at least, is on DirecTV's side. Federal law makes it illegal to intercept and watch pay TV without paying for it. It's also a crime to make and sell devices for the purpose.

The law also permits companies like DirecTV to sue for damages in civil court. And DirecTV has done so with gusto, suing everyone from your next-door neighbor to O.J. Simpson.

The El Segundo, Calif., company kicked off its legal campaign after using court orders to raid firms it suspected of selling illegal decoding equipment. Sales records seized in the raids led DirecTV to individuals who ordered access cards and other equipment, according to court filings.

The company then sent more than 100,000 letters to individuals demanding restitution of $3,500 or more. It's not clear how many individuals have agreed to pay to settle their cases.

Those letters were then followed by a flood of civil suits. Since the fall of 2002, DirecTV has filed about 22,000 lawsuits. That's equal to 8 percent of all the federal civil suits filed in the 12 months before DirecTV first went to court.

DirecTV generally demands $10,000 in damages in its federal suits. But in some instances, it has sought as much as $100,000.

Some defendants have responded to the wave of litigation by accusing DirecTV of strong-arm tactics.

Mark Buckley of Covington charged in a counterclaim that DirectTV was "conducting an extortion campaign by attempting to force individuals to pay sums to avoid vexatious and groundless litigation with the plaintiff."

For its part, DirecTV notes it is four-for-four in the only cases that have gone to trial, in California, Florida, South Carolina and Virginia.

Georgia could wind up as more than just another venue for the lawsuits. A federal appeals court in Atlanta is the first to have been asked to rule on an important part of the company's cases.

The issue is whether DirecTV can sue individuals simply because they have a program access card or other device that can be used illegally to unscramble the company's signals. The debate is over congressional intent in writing communications law.

An appeals court ruling against DirecTV wouldn't "make or break the entire case," said Lisa Wright, an Atlanta attorney who represents 15 individuals who were sued, including Buckley.

But she and others said it would make it harder for DirecTV to prove its other allegations: that individuals actually intercepted and watched programming without paying.

DirecTV acknowledged it has no way of telling when or if individuals watch programming illegally.

But the company has argued in court filings that there is no other use for the cards and devices in question. And it says no matter which way the appeals court rules, it will continue the litigation.

A ruling by the 11th Circuit Court of Appeals would set precedent only in federal courts in Georgia, Florida and Alabama.

But a ruling by one appeals court sometimes influences the thinking in others, according to Richard Freer, a law school professor at Emory University.

Interest in the appeals case is such that arguments have been filed from parties as far away as the West Coast.

San Francisco-based Electronic Frontier Foundation filed a friend-of-the-court brief in support of the appeals case defendant, Mike Treworgy of Punta Gorda, Fla.

The foundation describes itself as a "civil liberties organization working to protect rights in the digital world." It worries that consumers using access cards and devices for other reasons are being caught up in the anti-piracy campaign.