[DMCA-Activists] The DMCA and DRM Together Give the Englobulators Legal Cover toSteal Your Physical Property and Extort Thousands of Dollars from You by Crude Barratrous Threats

[Seth Johnson]

-------- Original Message --------
Subject: pho: The DMCA and DRM Together Give the Englobulators Legal Cover
toSteal Your Physical Property and Extort Thousands of Dollars from You
byCrude Barratrous Threats (fwd)
Date: Sat, 17 Apr 2004 14:53:48 -0400 (EDT)
From: Jay Sulzberger <address@hidden>
To: address@hidden


 ---------- Forwarded message ----------
 Subject: SecurityFocus Printable NEWS 8472
 X-URL: http://www.securityfocus.com/printable/news/8472


 NEWS

 < http://www.securityfocus.com/news/8472 >
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    Former anti-piracy 'bag man' turns on DirecTV

    By Kevin Poulsen, SecurityFocus Apr 16 2004 5:15PM
    A one-time enforcer in DirecTV's anti-piracy campaign is suing his
    ex-employer for wrongful discharge, after he allegedly 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, alleges in a complaint filed in
    Los Angeles County Court late last month that he joined DirecTV as a
    senior investigator in July, 2002, expecting to serve a legitimate
    investigative role tracking signal pirates. He wound up instead "as
    little better than a 'bag man for the mob,'" the lawsuit claims. He's
    seeking unspecified damages, and an end to DirecTV's tactics.
    At issue is DirecTV's end-user campaign, aimed at shutting down and
    collecting money from TV watchers who use smart card programmers and
    other equipment to get free or expanded satellite TV 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, or face litigation and
    possible damages of $100,000 or more. Since last year the company has
    sent out tens of thousands of such letters and filed lawsuits against
    over 9,000 people who've ignored them or refused to settle. None of
    those lawsuits have yet gone to trial.
    '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.'
    -- Ex-cop John Fisher's lawsuit against DirecTV
    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 advocacy groups and lawyers have
    received enough consumer complaints to prompt the Electronic Frontier
    Foundation and the Stanford Center for Internet and Society to launch
    an informational website apprising crackdown targets of their legal
    rights. EFF says innocent people are settling with DirecTV for no
    other purpose than to avoid costly litigation.
    Fisher's lawsuit provides a rare glimpse at the inner workings of the
    end user campaign, which, from his description, resembles nothing so
    much as a high-stakes boiler room operation. Fisher and his colleagues
    spent their days fielding calls from worried recipients of the
    threatening letters, confronting the targets with evidence of their
    "illegal" purchases, and persuading them -- with tough talk and
    black-and-white assertions about what is, in reality, a largely
    unsettled area of law -- to surrender the equipment and cough up the
    settlement money.
    Fisher "a Good Cop"
    The office culture rewarded workers who made collections in marginal
    cases -- one investigator allegedly tried to win a settlement from
    someone who had purchased nothing but a leather case. "It was a very
    competitive environment and the investigator who generated the most
    revenue was not only praised but also given a nice dinner or similar
    gift," wrote Fisher. A tote board on the wall charted the total amount
    brought in by the office, and when it logged its first million of the
    year, a congratulatory e-mail went out.
    The lawsuit claims the company knew that between five and ten percent
    of their targets were innocent. After a time, Fisher "fully realized
    the end user campaign was an elaborate extortion racket," the lawsuit
    alleges. "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." Fisher resigned in October.
    Though Fisher quit the job, the lawsuit argues that DirecTV
    effectively fired him by instructing him to behave unethically. "Mr.
    Fisher was forced to resign because of intolerable working
    conditions," says his attorney, Jeffrey Wilens. "Normally a lawsuit of
    that nature is based upon harassment, racial or sexual harassment, but
    sometime it's based on working conditions that require an employee to
    break the law or engage in unethical practices."
    DirecTV confirmed that Fisher worked for the company on its end user
    campaign, but would not comment on the circumstances of his departure.
    The company denies asking Fisher to do anything unethical or illegal.
    "We certainly can say that Mr. Fisher's allegations are baseless,"
    says company spokesman Robert Mercer.
    The Maywood, California police department confirmed that Fisher worked
    there as a patrol officer and detective until 1998, when a shoulder
    injury sustained in the line of duty forced his retirement. "I worked
    with him myself, and I can tell you he was regarded as a good cop, and
    somebody who could be counted on to help out, and he was a very moral
    and ethical person," said Sergeant Robert Leach.
    Multiple Lawsuits
    Jeffrey Wilens, Fisher's lawyer, is a tenacious opponent of DirecTV's
    ongoing crackdown. In 2002, he 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. But last year a
    county judge ruled that DirecTV's mailings were connected with
    litigation, and were therefore privileged; he dismissed the case and
    awarded DirecTV nearly $100,000 in attorney's fees.
    Undeterred, Wilens filed a federal lawsuit in Los Angeles under the
    mob-busting Racketeer Influenced and Corrupt Organizations (RICO)
    organized crime statute, again claiming extortion. A federal judge
    dismissed that case as well, using similar reasoning as the county
    judge. Both cases are under appeal.
    In March, Wilens filed another, nearly-identical RICO suit in
    Colorado, where he says case law is more favorable. He followed that
    up with the Fisher suit, and a separate lawsuit accusing the company
    of violating the Electronic Communications Privacy Act by coercing the
    Canadian operator of the Pirates Den online forum into handing over
    users' private communications. (The forum operator, also a defendant,
    has claimed the messages were seized and given to DirecTV by a
    Canadian court). All three cases are now pending.
    "He seems to keep trying to shoehorn some of these legal theories into
    another kind of case," says DirecTV's Mercer. "What did Albert
    Einstein say about doing the same thing over and over again and
    expecting different results?"
    "I don't hate DirecTV," says Wilens. "You don't hate the sinner, you
    hate the sin. I regard their conduct to be outrageous. I wouldn't be
    spending my time in these cases if money were the primary focus."



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