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Thursday, May 13, 2010

Ind. Decisions - One Indiana case decided today by 7th Circuit

In DIRECTV v. Barczewski (SD Ind., Hamilton), a 15-page opinion, Chief Judge Easterbrook writes:

A jury concluded that Jonathan Wisler intercepted encrypted signals from the DirecTV satellite system without authorization and that David Barczewski furnished devices to assist others to steal the signals. See 18 U.S.C. §2511; 47 U.S.C. §605. Ample evidence supports this verdict: both defendants bought electronic gear from a merchant that advertised its products as designed to facilitate theft of DirecTV signals, and both participated in an online discussion group, called the “Pirate’s Den,” whose members exchanged advice about how to decrypt DirecTV signals without paying. Both defendants insisted that the “smart cards” and associated gear they purchased had legal uses. That much is uncontested, but the jury did not have to believe defendants’ claim that the gear had been put to a legal rather than an illegal use. Nor did the jury have to believe Wisler’s assertion that, as a DirecTV subscriber, he had no reason to steal signals. After buying a smart card and joining the Pirate’s Den, Wisler cut back to the lowest tier of service; a jury could conclude that he descrambled other programs, such as sports and movies, without paying. * * *

[Interesting discussion of "shall" and "may," eg at p. 7] As our colleagues in other circuits have remarked, this unwillingness to give effect to a change in statutory language unless the legislative history contains a reassuring “We really mean it!” is incompatible with decisions of the Supreme Court. See, e.g., Swain v. Pressley, 430 U.S. 372, 378–79 (1977); Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) (“it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute”). Legislative history comes into play only when necessary to decode an ambiguous enactment; it is not a sine qua non for enforcing a straightforward text. * * *

[at p. 14] District judges have discretion to consider other reasoned approaches too; there is latitude in the word “may.” The district judge used that latitude to give Barczewski the lowest available penalty. But judges need not go easy on hourly wage-earners who decide to steal TV signals, any more than they need go easy on people who choose other forms of theft to supplement the family budget. People who do not want to pay the market price for goods or services must refrain from theft and cannot complain if the price of crime is steep.

Posted by Marcia Oddi on May 13, 2010 12:55 PM
Posted to Ind. (7th Cir.) Decisions