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DirecTV's anti-SLAPP slap to litigant

Court rules against former anti-piracy enforcer

A Los Angeles court last week dismissed a lawsuit filed by a former enforcer in DirecTV's anti-piracy campaign who claimed he resigned rather than continue to prosecute the company's controversial war against buyers of hacker-friendly smart card equipment.

John Fisher, a former police officer, alleged that he joined DirecTV as a senior investigator in July 2002 expecting to serve a legitimate investigative role tracking signal pirates, and wound up instead "as little better than a bag man for the mob". Fisher charged the satellite TV company with unfair business practices and wrongful termination, seeking unspecified damages and an end to DirecTV's tactics.

Los Angeles County Judge Cary Nishimoto ruled Thursday that the collection efforts that Fisher had been part of were connected with litigation, and were therefore legally privileged. Nishimoto dismissed the unfair business practices case under California's anti-SLAPP law, designed to block lawsuits filed for the sole purpose of suppressing speech or hindering access to the courts. (Under a prior agreement with DirecTV, Fisher's wrongful discharge claim against the company will be settled in arbitration.)

Last year the same reasoning resulted in the dismissal of a similar case filed by the same attorney, Jeffrey Wilens - a tenacious opponent of DirecTV's crackdown. Wilens sued the company for extortion on behalf of seven clients who claimed to have ordered smart card programmers and other equipment for legitimate purposes, and subsequently received DirecTV's threatening letter. Last year a county judge dismissed that case under the anti-SLAPP law and awarded DirecTV nearly $100,000 in attorneys' fees. The case is now under appeal.

"It's more of the same type of analysis," says Wilens, who's filed several local and federal cases against DirecTV, so far without success. "That they can send out thousand of letters with no basis to back them up, because it's all protected by a right to threaten to sue people."

"All the rulings in these cases underscore our contention that we have an effective and legally valid process for challenging those engaged in signal theft, and for gaining reimbursement for the damage cause by their illegal activity," says DirecTV spokesman Robert Mercer.

Lingering Controversy

DirecTV's end-user campaign is aimed at shutting down and collecting money from larcenous TV watchers who use smart card programmers and other equipment to get free or expanded satellite service. Because there's no way to trace people who are passively receiving DirecTV's signal, the company turned to a strategy of physically raiding equipment sellers that cater to pirates, using the authority of the Digital Millennium Copyright Act. The company then sends out threatening letters to everyone on the seized customer lists.

The letters accuse the recipients of violating anti-piracy laws by purchasing equipment like customizable smart card programmers, and demand a cash settlement beginning at $3,500, under threat of litigation and possible damages of $100,000 or more. Since last year the company has sent out an estimated 100,000 letters and filed approximately 14,000 lawsuits against over 24,000 people who've ignored them or refused to settle.

DirecTV began facing criticism over the campaign after it targeted some innocent techies who had perfectly legal uses for the equipment they purchased. The company says the number of non-pirates swept into its dragnet is minuscule, but the Electronic Frontier Foundation says innocent people are settling with DirecTV for no other purpose than to avoid costly litigation.

In his lawsuit, Fisher, who resigned from DirecTV last October, claimed the company knew that between five and ten per cent of their targets were innocent of signal theft, but pursued them anyway. "The letters were full of lies or misrepresentations and the investigators were required to coerce people into paying money for stealing services when we had no proof whether they had done so or not," the lawsuit alleged.

"These were people that we identified as having purchased a signal theft device," says DirecTV's Mercer. "That claim is as ludicrous as the lawsuits that Mr. Wilens has brought against us. I wish the three strikes law applied to ludicrous litigation where Mr. Wilens is concerned."

Last month DirecTV won a protective order barring Wilens from making public internal company emails and information provided by Fisher about the company's end user strategy. The company said last week it would also ask the court to order Fisher to pay DirecTV's attorneys' fees.

In April, DirecTV finished a wholesale swap-out of 17 million hackable access cards and shut down its legacy data stream, effectively slamming the door on signal pirates - at least for the moment. The company's fourth generation smart card, called the "P4", has thus far held up against hackers, but the three earlier versions were all eventually hacked.

Copyright © 2004, 0

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