Directv, Inc. v. Barnes

• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: Quist
• Citation: Directv, Inc. v. Barnes, 302 F.Supp.2d 774 (W.D. Mich. 2004)
• Decision Date: 02 February 2004
• Docket Number: No. 1:02-CV-883.,1:02-CV-883.
• Parties: DIRECTV, INC., Plaintiff, v. Floyd BARNES, Defendant.

302 F.Supp.2d 774

DIRECTV, INC., Plaintiff, v. Floyd BARNES, Defendant.

No. 1:02-CV-883.

United States District Court, W.D. Michigan, Southern Division.

February 2, 2004.

COPYRIGHT MATERIAL OMITTED

Angela M. Brown, Angela Emlet-Dardas, Janice Keays Smith, Lansing, MI, for Plaintiff.

Fredrick W. Jensen, Jr., for Defendant.

OPINION

QUIST, District Judge.

Plaintiff, DIRECTV, Inc. ("DIRECTV"), has sued Defendant, Floyd Barnes ("Barnes"), alleging that he violated the Federal Communications Act of 1934, 47 U.S.C. § 605, the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, and the Communications Assistance for Law Enforcement Act of 1994, 18 U.S.C. §§ 2510-22 (the "Wiretap Act"), and Michigan common law by purchasing and using access cards and other devices ("Pirate Access Devices") to decrypt, receive, and view DIRECTV's encrypted satellite transmissions of television programming. DIRECTV seeks injunctive relief, statutory damages, or, in the alternative, compensatory and punitive damages, attorney fees and costs. Now before the Court are DIRECTV's motion for summary judgment on its claim under the Wiretap Act and Barnes' motion for summary judgment on all of DIRECTV's claims.

I. Facts

DIRECTV is one of the nation's largest providers of satellite television programming. DIRECTV delivers its broadcasts throughout the United States to customers who have paid a subscription fee. In order to receive the broadcasts, a DIRECTV subscriber must possess a satellite dish, an integrated receiver/decoder, and an access card to unscramble the signals. DIRECTV provides this equipment to its subscribers either for free or for a small fee. The access card, otherwise known as an ISO-7816 compliant smart card, is roughly the size of a credit card and contains a small microprocessor chip that is inserted into a DIRECTV receiver. DIRECTV programs the subscriber's access card with data corresponding to the subscriber's level of service. In other words, the cards are electronically programmed to block or unblock television channels and specific programs to include only the programming for which the subscriber has paid.

In spite of DIRECTV's efforts to prevent unauthorized reception and use of its programming, individuals have sought to illegally decrypt and intercept DIRECTV's signal without authorization by use of various Pirate Access Devices. Although Pirate Access Devices vary in type, they essentially allow the user to modify the access card to circumvent DIRECTV's security measures and decode its satellite signals.

On May 25, 2001, DIRECTV executed writs of seizure at the mail shipping facility used by several major suppliers of Pirate Access Devices, including Vector Technologies; DSS-Stuff; Shutt, Inc.; Intertek; WhiteViper; and DSS-Hangout (the "Suppliers"). Among other things, DIRECTV obtained shipping records, email communications, and credit card receipts identifying purchasers, or end-users, of illegal Pirate Access Devices from the Suppliers. DIRECTV used that information to obtain settlements (including monetary payments, stipulated injunctive relief, and turnover of the devices) from end-users or, failing a settlement, to sue end-users in federal court. This is one of perhaps thousands of suits DIRECTV has filed throughout the country against end-users.

On June 18, 2000, Barnes purchased a WildThing2 Clone Unlooper ("Unlooper") from WhiteViper Technologies. (Barnes Dep. at 16-17 & Dep. Ex. 1, Pl.'s Br. Supp. Mot. Ex. 2.). At that time, Barnes was a DIRECTV subscriber and possessed all of the necessary equipment to receive DIRECTV's satellite signals. (Id. at 10-12.) Barnes purchased the Unlooper in order to see if it would "work and load up." (Id. at 18.) Barnes believed that the Unlooper would "load up and [he] would be able to get some [DIRECTV] programming" for free.¹ (Id.) Barnes used a programmed DIRECTV access card in the Unlooper but was unable to get it to work or "load up." (Id. at 19-20.) Based upon the information he read on the internet, Barnes believed that he would be able to receive free programming by using the Unlooper and a programmed access card. (Id. at 19). Barnes sent an email to WhiteViper and visited various websites devoted to providing information on using Pirate Access Devices, including one called "Pirate's Den," to obtain information on using the Unlooper. (Id. at 19.) Barnes also downloaded software for the Unlooper from the WhiteViper site. (Id. at 22.) However, Barnes testified that he was never able to make the Unlooper work and never received any DIRECTV programming beyond that covered by his subscription. (Id. at 22-23.)

II. Summary Judgment Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.

The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

III. Discussion

In its complaint, DIRECTV asserts four separate claims, including: (1) unauthorized reception of satellite signals in violation of 47 U.S.C. § 605(a); (2) unauthorized interception of satellite communications in violation of 18 U.S.C. § 2511(1)(a); (3) possession of pirate access devices in violation of 18 U.S.C. 2512(1)(b)²; and (4) conversion. DIRECTV has stated that it will not pursue the third and fourth claims against Barnes and that those claims should be considered withdrawn. (Pl.'s Br. Opp'n Def.'s Mot. at 7 n. 4.) Thus, the only claims before the Court are DIRECTV's claims under 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a).

DIRECTV has moved for summary judgment on its claim under 18 U.S.C. §§ 2511(1)(a), (2)(d), and 2520, on the ground that Barnes has admitted to violating these statutes by intercepting DIRECTV programming for a tortious or unlawful purpose. Barnes has moved for summary judgment as to the remaining claims on the ground that DIRECTV has failed to create a genuine issue of material fact as to the alleged violations of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a). Barnes further argues that DIRECTV has failed to state a claim under 18 U.S.C. § 2511(1)(a).³

A. DIRECTV's Motion For Summary Judgment

DIRECTV contends that it is entitled to summary judgment on its claim that Barnes violated 18 U.S.C. § 2511(1)(a) because Barnes' admissions are sufficient to show that Barnes "intercepted" DIRECTV's satellite signals. Section 2511(1)(a) imposes criminal liability upon any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). In addition, 18 U.S.C. § 2520(a) creates a private cause of action for violations of § 2511. DIRECTV, Inc. v. Hosey, 289 F.Supp.2d 1259, 1264 (D.Kan.2003); DIRECTV, Inc. v. Childers, 274 F.Supp.2d 1287, 1288 (M.D.Ala.2003); DIRECTV, Inc. v. Jerolleman, No. Civ. A. 03-1465, 2003 WL 22697177, at *2 (E.D.La. Nov.12, 2003). That section provides:

Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

18 U.S.C. § 2520(a).

DIRECTV argues that it is entitled to summary judgment even though Barnes denies that he was able to view any DIRECTV programming beyond that provided by his subscription. DIRECTV theorizes that all DIRECTV subscribers, regardless of whether they are legitimate users or are attempting to access additional programming without authorization, "intercept" DIRECTV's satellite signals for purposes of §§ 2511(a)(1) and 2520(a) whenever their receivers are turned on. DIRECTV notes that the datastream for the entire range of DIRECTV programming is sent to every subscriber, and DIRECTV uses the access card and receiver in tandem to permit the user to decrypt the portions of the signal they are authorize to receive. Thus, according to DIRECTV, the subscriber's "interception" is unlawful only when he or she attempts to view unauthorized programming. DIRECTV contends that its position is consistent with the exception provided in § 2511(2)(d), which provides:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

18 U.S.C. § 2511(2)(d).

DIRECTV's argument must be rejected because it conveniently ignores several pertinent statutory provisions, most notably, the definition of "intercept," which "means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). In turn, the term" `contents', when used with respect to any wire, oral, or electronic communication, includes any information...