The original decision also noted that smart card itself doesn't qualify as a device "primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services" as the law requires. The card itself is primarily used by legitimate DirecTV customers to lawfully receive broadcasts.
In the court's opinion, one of the three judges involved in the 2-1 decision noted that DirecTV's original claim that simply inserting the removable smart card into a DirecTV receiver constitutes "assembling a piracy device" would, if upheld, blur the distinction between commercial and personal penalties.
According to an affadavit submitted to the court by former DirecTV employee John Fisher, he was hired by the company to Field phone calls from recipients of a letter that the satellite provider sent to people who had purchased smart card programming equipment. He said the letters were part of a campaign to threaten owners of smart card programmers, which could potentially be used in the pircy of DirecTV's signal, into paying thousands of dollars simply for owning the programming equipment. the recipients were selected from customer lists DirecTV obtained after lawsuits against companies selling equipment for pirating their signal.
According to Fisher, on one occasion he learned that the company was trying to force a settlement from someone who had only bought a plastic pouch that could carry a smart card programmer.
Two men who received the letters, Hoa Huynh and Cody Oliver, didn't respond by phone to them, and when taken to court didn't appear. However, the judges in the original cases disagreed with DirecTV's lawyers that there were grounds for decisions against them based on the statute regarding modification and distribution.
The Electronic Frontier Foundation (EFF) submitted a friend of the court brief in support of upholding the decision.
Sources:
9th Circuit Court of Appeals
John Fisher's Affidavit
EFF
Written by: Rich Fiscus @ 12 Sep 2007 10:45
