cojones
11-09-2003, 04:58 PM
C&P from another site
From Attorney Mr. Zakarian
"2512 Decision in Indiana!DTV Looses in Court Decision Again"
I am happy to report to you a decision that is important not only because it represents yet another court who agrees that there is no Cause of Action for mere possession under 18 USC 2512, but also because this Court actually acknowledged what we all have thought for the duration of this whole campaign: that the punishment does not fit the crime and that is partly why the campaign is so brutal and unfair. The critical part of the opnion is below. Congrats to able counsel in Indiana who secured this result and to the Judge for seeing the problem clearly.
____________________________________
DirecTV v. Beecher, Case No.: 1:03-cv-0309
U.S. Dist. Court, Southern of Indiana
First the Court calls DirecTV's argument what it really is regarding the 2512 interpretation:
"Offering a different interpretation of Section 2520(a), DirecTV focuses on the phrase authorizing relief “from the person or entity . . . which engaged in thatviolation.” That language was included as an amendment in 1986. DirecTV argues:
As amended, the private cause of action under Section 2520 is no longer limited to claims against a defendant who intercepted, disclosed or used an electronic communication, but has instead been expanded to permit any plaintiff whose electronic communication has been intercepted, disclosed or used, to sue those who “engaged” in any violation of Chapter 119, including Section 2512. Thus, the statute now defines the class of potential defendants as any person “engaged in” a “violation of this chapter.” Pl. Br. at 6 (emphasis in original)."
In dramatic fashion, the Court exposes this argumentation for what it is:
" DirecTV’s argument is based on an obvious and critical distortion of the statutory language. The private civil action is authorized not, as plaintiff has rephrased the statute in its brief, against a person who “‘engaged in any violation of chapter 119.” Instead, the statutory language itself authorizes a civil action against a person who “engaged in that violation.” As a matter of grammar and sentence structure, the phrase “that violation” must refer to the interception, disclosure, or intentional use of a communication in violation of this chapter referred to earlier in the sentence."
After exposing the flaw in DirecTV's 2512 argument, it says what we all have been thinking since the beginning of this campaign regarding the utter draconian measures allowed against the "little guy" by these laws when it states:
"The broad interpretation of Section 2520(a) embraced in Gatsiolis, Oceanic Cablevision, and EQ Stuff may well lend itself to more thorough and effective enforcement of the law. The courts must remember, however, that individuals who purchase decoding devices are also constituents of Members of Congress, who presumably wrote the law to balance competing interests and to calibrate enforcement mechanisms and penalties to the severity of a violation. See Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (“. . . no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”) (emphasis in original); see also Board of Governors of Federal Reserve Bank v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986) (application of “broad purposes” of statute at expense of specific provisions ignores the complexity of the problems and the dynamics of legislative action); Chicago Professional Sports Ltd. P’ship v. National Basketball Ass’n, 961 F.2d 667, 671 (7th Cir. 1992) (courts must enforce the limits of “special interest” laws and not bestow upon the lobbyists what they did not win from the legislature). Even if the defendants’ conduct in these cases might have violated federal law, Congress did not authorize private civil actions and draconian financial penalties to remedy every single violation of law.
QUOTE:
"Accordingly, the court GRANTS defendants’ motion to dismiss Count Three of the complaint. To the extent plaintiff can show that any defendant participated in actual interception of protected broadcasts, plaintiff should be entitled to relief under Count Two."
UnQuote
Have a nice weekend!
Albert A. Zakarian, Esquire
2024 West Cleveland Street
Tampa, FL 33606
zakarian@tampabay.rr.com
wwx.dtvdefense.com
wwx.RIAAdefense.com
(813) 251-2200
fax (813) 251-2445
---------------------------------------------------------------------
The Full Ruling is here in PDF form for those interested:
http://wwx.overhauser.com/DTV/Rulin...ndSeverance.pdf
The judge saw through DTV's BS. He states this para-phasing:
"DirecTV’s argument is based on an obvious and critical distortion of the statutory language. The private civil action is authorized not, as plaintiff has rephrased the statute in its brief, against a person who “‘engaged in any violation of chapter 119.” Instead, the statutory language itself authorizes a civil action against a person who “engaged in that violation.” As a matter of grammar and sentence structure, the phrase “that violation” must refer to the interception, disclosure, or intentional use of a communication in violation of this chapter referred to earlier in the sentence."
In Addition the judge said:
"Many district court opinions have already been written on this subject. A detailed discussion of them would spill more ink without adding much light to the subject."
Maybe the judge will see that DTV's entire case is based on "distortion" and lies and false material as well. Here below is part of what Defendent and attorney had said to the Court in this case. Very interesting Reply to the courts:
_____________
Quote:
"It is a good outline of DTV's new business plan. (The plan could be titled: How to make 10 billion dollars subtitled: How to get rich without working by using/misusing the legal system)
"What this Case is Really All about : Is “Mere Possession” Actionable by DirecTV?....
Suppose there are 1,000,000 people having “devices” that DirecTV alleges could be used to intercept signals, but none of these people, nor anyone else, has ever intercepted DirecTV’s signal. The parties agree that DirecTV would have no claim against anyone. Next, suppose that one person improperly intercepts or uses a DirecTV signal. Both parties agree that DirecTV has a claim under § 2520 against that one person. However, DirecTV argues that, in addition, the single instance of interception by one person gives it a cause of action against the other 999,999 people. DirecTV argues that as long as someone, somewhere, sometime, has ever intercepted one of its channels, even if for only a minute, that it can sue others who have never intercepted its signals. Moreover, under DirecTV’s theory, it would be entitled to at least $10,000 in statutory damages from each of the 1,000,000 persons, resulting in a windfall of $10,000,000,000 in damages from the one instance of interception.
In this context, DirecTV’s so-called “anti-piracy” campaign takes on a new light. This is not a campaign to recoup “losses” inflicted by “pirates,” but to paint as many “devices” as possible as “pirate access devices” and as many people as possible as “pirates.” DirecTV is taking advantage of a statutory ambiguity at the expense of thousands of innocent consumers. DirecTV cavalierly labels all sorts of standard smartcard “devices” as “Pirate Access Devices,” including even simple smartcard programmers purchased for children from Toys R Us. DirecTV’s threats of $10,000 - $100,000 in statutory damages, coupled with settlement offers to frightened, perplexed consumers of a “mere” $4,500, reveal the true, extortionate nature of DirecTV’s “anti-piracy” campaign. If condoned by this Court, it is an ingenious business plan that will reward DirecTV with millions of dollars from persons who never received, tried to receive, or even wanted, DirecTV’s signals."
End Quote
(addition by drives fast) and not to mention as to how they could possibly prove an amount of damages without any proof af actual singnal interception. You cannot asses an amount of damages without knowing how many actual hours a signal was intercepted and decrypted. This is an impossibility that WILL NEVER ever be proveable.
(additional addition by drives fast) and furthermore there is the issue of "double damages". One cannot collect "double damages" on something. If DTV busts a hardware dealer and manages to succede in their civil suit and collect damages from the hardware seller, they cannot turn around and collect damages from an end user that they sued for buying said device from the affore mentioned hardware dealer. It just doesn't work that way and I cannot believe how the legal system is allowing this kind of thing to slip through the cracks
----------------------------------------------------------------------
This is good for us and times will change as we go futher down this road now. THE courts are slowly getting fed up with DTV and feeling the heat from the consumers now. So just buying and having an "item" is NOT PROOF of Reception or guilt of any crime per say. THEY are going to have to have some proof. Back to innocent till PROVEN guilty, not on a whim for having bought a item out in the real world
From Attorney Mr. Zakarian
"2512 Decision in Indiana!DTV Looses in Court Decision Again"
I am happy to report to you a decision that is important not only because it represents yet another court who agrees that there is no Cause of Action for mere possession under 18 USC 2512, but also because this Court actually acknowledged what we all have thought for the duration of this whole campaign: that the punishment does not fit the crime and that is partly why the campaign is so brutal and unfair. The critical part of the opnion is below. Congrats to able counsel in Indiana who secured this result and to the Judge for seeing the problem clearly.
____________________________________
DirecTV v. Beecher, Case No.: 1:03-cv-0309
U.S. Dist. Court, Southern of Indiana
First the Court calls DirecTV's argument what it really is regarding the 2512 interpretation:
"Offering a different interpretation of Section 2520(a), DirecTV focuses on the phrase authorizing relief “from the person or entity . . . which engaged in thatviolation.” That language was included as an amendment in 1986. DirecTV argues:
As amended, the private cause of action under Section 2520 is no longer limited to claims against a defendant who intercepted, disclosed or used an electronic communication, but has instead been expanded to permit any plaintiff whose electronic communication has been intercepted, disclosed or used, to sue those who “engaged” in any violation of Chapter 119, including Section 2512. Thus, the statute now defines the class of potential defendants as any person “engaged in” a “violation of this chapter.” Pl. Br. at 6 (emphasis in original)."
In dramatic fashion, the Court exposes this argumentation for what it is:
" DirecTV’s argument is based on an obvious and critical distortion of the statutory language. The private civil action is authorized not, as plaintiff has rephrased the statute in its brief, against a person who “‘engaged in any violation of chapter 119.” Instead, the statutory language itself authorizes a civil action against a person who “engaged in that violation.” As a matter of grammar and sentence structure, the phrase “that violation” must refer to the interception, disclosure, or intentional use of a communication in violation of this chapter referred to earlier in the sentence."
After exposing the flaw in DirecTV's 2512 argument, it says what we all have been thinking since the beginning of this campaign regarding the utter draconian measures allowed against the "little guy" by these laws when it states:
"The broad interpretation of Section 2520(a) embraced in Gatsiolis, Oceanic Cablevision, and EQ Stuff may well lend itself to more thorough and effective enforcement of the law. The courts must remember, however, that individuals who purchase decoding devices are also constituents of Members of Congress, who presumably wrote the law to balance competing interests and to calibrate enforcement mechanisms and penalties to the severity of a violation. See Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (“. . . no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”) (emphasis in original); see also Board of Governors of Federal Reserve Bank v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986) (application of “broad purposes” of statute at expense of specific provisions ignores the complexity of the problems and the dynamics of legislative action); Chicago Professional Sports Ltd. P’ship v. National Basketball Ass’n, 961 F.2d 667, 671 (7th Cir. 1992) (courts must enforce the limits of “special interest” laws and not bestow upon the lobbyists what they did not win from the legislature). Even if the defendants’ conduct in these cases might have violated federal law, Congress did not authorize private civil actions and draconian financial penalties to remedy every single violation of law.
QUOTE:
"Accordingly, the court GRANTS defendants’ motion to dismiss Count Three of the complaint. To the extent plaintiff can show that any defendant participated in actual interception of protected broadcasts, plaintiff should be entitled to relief under Count Two."
UnQuote
Have a nice weekend!
Albert A. Zakarian, Esquire
2024 West Cleveland Street
Tampa, FL 33606
zakarian@tampabay.rr.com
wwx.dtvdefense.com
wwx.RIAAdefense.com
(813) 251-2200
fax (813) 251-2445
---------------------------------------------------------------------
The Full Ruling is here in PDF form for those interested:
http://wwx.overhauser.com/DTV/Rulin...ndSeverance.pdf
The judge saw through DTV's BS. He states this para-phasing:
"DirecTV’s argument is based on an obvious and critical distortion of the statutory language. The private civil action is authorized not, as plaintiff has rephrased the statute in its brief, against a person who “‘engaged in any violation of chapter 119.” Instead, the statutory language itself authorizes a civil action against a person who “engaged in that violation.” As a matter of grammar and sentence structure, the phrase “that violation” must refer to the interception, disclosure, or intentional use of a communication in violation of this chapter referred to earlier in the sentence."
In Addition the judge said:
"Many district court opinions have already been written on this subject. A detailed discussion of them would spill more ink without adding much light to the subject."
Maybe the judge will see that DTV's entire case is based on "distortion" and lies and false material as well. Here below is part of what Defendent and attorney had said to the Court in this case. Very interesting Reply to the courts:
_____________
Quote:
"It is a good outline of DTV's new business plan. (The plan could be titled: How to make 10 billion dollars subtitled: How to get rich without working by using/misusing the legal system)
"What this Case is Really All about : Is “Mere Possession” Actionable by DirecTV?....
Suppose there are 1,000,000 people having “devices” that DirecTV alleges could be used to intercept signals, but none of these people, nor anyone else, has ever intercepted DirecTV’s signal. The parties agree that DirecTV would have no claim against anyone. Next, suppose that one person improperly intercepts or uses a DirecTV signal. Both parties agree that DirecTV has a claim under § 2520 against that one person. However, DirecTV argues that, in addition, the single instance of interception by one person gives it a cause of action against the other 999,999 people. DirecTV argues that as long as someone, somewhere, sometime, has ever intercepted one of its channels, even if for only a minute, that it can sue others who have never intercepted its signals. Moreover, under DirecTV’s theory, it would be entitled to at least $10,000 in statutory damages from each of the 1,000,000 persons, resulting in a windfall of $10,000,000,000 in damages from the one instance of interception.
In this context, DirecTV’s so-called “anti-piracy” campaign takes on a new light. This is not a campaign to recoup “losses” inflicted by “pirates,” but to paint as many “devices” as possible as “pirate access devices” and as many people as possible as “pirates.” DirecTV is taking advantage of a statutory ambiguity at the expense of thousands of innocent consumers. DirecTV cavalierly labels all sorts of standard smartcard “devices” as “Pirate Access Devices,” including even simple smartcard programmers purchased for children from Toys R Us. DirecTV’s threats of $10,000 - $100,000 in statutory damages, coupled with settlement offers to frightened, perplexed consumers of a “mere” $4,500, reveal the true, extortionate nature of DirecTV’s “anti-piracy” campaign. If condoned by this Court, it is an ingenious business plan that will reward DirecTV with millions of dollars from persons who never received, tried to receive, or even wanted, DirecTV’s signals."
End Quote
(addition by drives fast) and not to mention as to how they could possibly prove an amount of damages without any proof af actual singnal interception. You cannot asses an amount of damages without knowing how many actual hours a signal was intercepted and decrypted. This is an impossibility that WILL NEVER ever be proveable.
(additional addition by drives fast) and furthermore there is the issue of "double damages". One cannot collect "double damages" on something. If DTV busts a hardware dealer and manages to succede in their civil suit and collect damages from the hardware seller, they cannot turn around and collect damages from an end user that they sued for buying said device from the affore mentioned hardware dealer. It just doesn't work that way and I cannot believe how the legal system is allowing this kind of thing to slip through the cracks
----------------------------------------------------------------------
This is good for us and times will change as we go futher down this road now. THE courts are slowly getting fed up with DTV and feeling the heat from the consumers now. So just buying and having an "item" is NOT PROOF of Reception or guilt of any crime per say. THEY are going to have to have some proof. Back to innocent till PROVEN guilty, not on a whim for having bought a item out in the real world