Directv Inc. v. Robson, No. 04-30861.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Patrick E. Higginbotham
• Citation: 420 F.3d 532
• Decision Date: 09 August 2005
• Docket Number: No. 04-30861.
• Parties: DIRECTV, INC., Plaintiff-Appellant, v. Marc ROBSON, Defendant-Appellee.

420 F.3d 532 DIRECTV, INC., Plaintiff-Appellant,
v.
Marc ROBSON, Defendant-Appellee. No. 04-30861. United States Court of Appeals, Fifth Circuit. August 9, 2005.

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Howard Robert Rubin (argued), Christian S. Genetski, Sonnenschein, Nath & Rosenthal, Washington, DC, for DIRECTV, Inc.

Donald Bruce Cameron (argued), Cameron Law Firm, Slidell, LA, for Robson.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, BARKSDALE and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

DIRECTV, Inc. ("DTV") appeals the district court's grant of summary judgment on its claims for illegal interception of its satellite transmissions in violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and for modification and assembly of pirate access devices in violation of 47 U.S.C. § 605(e)(4). We affirm as to the interception claims and vacate as to the device claims.¹

I

DTV is a nationwide provider of direct-to-home satellite programming, including movie channels, sports, major cable networks, and local channels. DTV offers products on both a subscription and payper-view basis, and it encrypts—that is, digitally scrambles—its satellite broadcasts to guard against unauthorized access. A typical system consists of a small DTV-compatible satellite dish, a DTV receiver (also known as an "integrated receiver/decoder" or "IRD"), and a DTV access card. The dish connects to the receiver, which in turn connects to the user's television. A DTV access card, when inserted into the receiver, allows the receiver to decrypt the various channels or services that the user has purchased. A DTV access card is a smart card, similar in size and shape to a credit card, and also contains an embedded computer and memory.

Numerous "pirate access devices"² have been developed to circumvent the necessity of a valid access card, thereby allowing users to illegally decrypt the DTV satellite signal and thus obtain DTV programming without purchasing it. Such piracy can take various forms, including modifying a

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valid access card or using a device to take the place of a valid access card.

Defendant Marc Robson is a self-employed computer consultant who has, in the past, taken numerous technical education classes related to computers, taught classes on how to use vàrious software packages, and done work for IBM. DTV has presented evidence indicating that Robson possessed an emulator, which is a printed circuit board that is inserted into the receiver in place of an access card. An emulator—used in conjunction with a personal computer, special software, a smart card reader/writer, a DTV access card, and a DTV receiver—allows an individual to intercept DTV's satellite programming without paying for it.³

According to DTV, on February 27, 2001, Robson posted a message at an internet website that acts as a clearinghouse of information regarding, among other things, pirate access devices and the pirating of satellite transmissions. The post read: "Just got my mc1489 chip and putting together an emulator. But haven't done anything like this before. When placing the chip into the pcb does the copper side go up or down?" The post was made under the username "dobson"— a username that had been registered utilizing the e-mail address of Robson's wife. Robson denies having an emulator, making the web post or even visiting the website. Robson also denies that emulators are primarily used for pirate activities.

DTV first became aware of Robson following its execution of a writ of seizure at a mail shipping facility used by a device merchant named Card Unlooping. Records seized indicated that Robson purchased a PS2 Plus SU2 Unlooper ("the unlooper"), worth $249.00, on March 5, 2001. According to DTV, the unlooper can be used to alter or restore functionality to DTV access cards that have been disabled by misuse or by an ECM;⁴ it acts as a smart card reader/writer, but with additional capabilities. DTV maintains that the unlooper has no commercially significant purpose other than piracy.

Robson admits to purchasing the unlooper, but claims he did so to program smart cards for security purposes.⁵ Robson invokes his position as a consultant and his desire to anticipate prospective clients' needs to justify his interest in learning smart card technology. He maintains that he threw the unlooper away after being unable to make it work.

Before us are DTV's claims against Robson for violations of the Communications

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Act of 1934,⁶ as well as for violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act).⁷ Specifically, DTV alleged illegal interception of DTV's satellite transmission per 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and illegal modification and assembly of pirate access devices in violation of 47 U.S.C. § 605(e)(4).⁸

The district court granted summary judgment to Robson on these claims.⁹ As to § 605(a) and § 2511(1)(a), the district court held that "[m]ere possession of unloopers and emulators is insufficient to raise an inference of illicit use of these devices."¹⁰ The district court held that § 605(e)(4) does not apply to "individual users."¹¹ DTV timely appeals.

II

We review a grant of summary judgment de novo, applying the same standard as the district court.¹² "Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law."¹³ "An issue is material if its resolution could affect the outcome of the action."¹⁴ A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.¹⁵

The district court was obligated to "consider the evidence in the light most favorable"¹⁶ to DTV as the nonmovant, and to "indulge every reasonable inference from the facts" in favor of DTV.¹⁷ If a movant alleges an absence of specific facts necessary for a nonmovant to establish an essential element of its case, then the nonmovant "must respond by setting forth `specific facts showing that there is a genuine issue for trial.'"¹⁸ "After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted."¹⁹

III

DTV challenges the district court's grant of summary judgment on its interception

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claims under § 605(a) and § 2511(1)(a). Robson counters that DTV cannot succeed on these claims because there is insufficient evidence to support a finding that Robson actually intercepted or otherwise unlawfully appropriated DTV's transmissions. We are persuaded that DTV's relatively weak circumstantial evidence fails to forestall summary judgment in this case.

A

DTV's interception claims implicate the criminal provisions in § 605(a) and § 2511(1)(a), in conjunction with their respective civil remedies.

Section 605(a) provides, in part, that

no person receiving [or] assisting in receiving ... any interstate or foreign communication by wire or radio shall divulge or publish the ... contents . . ., except [in authorized circumstances.] No person not being authorized by the sender shall intercept any radio communication and divulge or publish the ... contents... of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication ... for his own benefit or for the benefit of another not entitled thereto.²⁰

Section 605(e)(3)(A), in turn, provides a civil remedy for "[a]ny person aggrieved by any violation of [§ 605(a)] or [§ 605(e)(4)]."²¹

Similarly, § 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."²² A civil action is provided in § 2520(a): "[A]ny 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."²³

To prevail on its claims for violations of § 605(a) and § 2511(1)(a), DTV must demonstrate that Robson intercepted or otherwise unlawfully appropriated DTV's transmission.²⁴ DTV has not presented any direct evidence that Robson engaged in illegal interception, or that Robson even had the DTV equipment necessary for interception—specifically, a DTV access card, DTV receiver, and DTV satellite dish.

Circumstantial evidence can support a finding that a communication was intercepted, even absent direct evidence.²⁵

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In some contexts we have indicated that circumstantial evidence must be relatively strong to successfully avert summary judgment.²⁶ Today we address whether the circumstantial evidence presented is sufficient to allow an inference of actual interception. One court recently noted that to the best of its knowledge,

no court has expressly addressed the sufficiency of circumstantial proof required for DIRECTV to establish actual interception of its satellite signals when a defendant admits that he purchased a device to receive free DIRECTV but denies that he was [able] to use the Pirate Access Device to actually receive or intercept DIRECTV's signal.²⁷

Although the defendant here never admitted to illicit intentions in purchasing the pirate access device, we echo this sentiment in the face of a similar paucity of guiding caselaw.

DTV put forth the following circumstantial evidence as bearing upon its interception claims: (1) Robson posted a message on an internet website devoted to piracy indicating that he possessed an emulator and that he needed help in assembling it; (2) roughly six...