United States District Court, N.D. Illinois, Eastern Division
DIRECTV, INC., Plaintiff,
PAUL JOHNSON, Defendant.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, DirecTv, Inc., filed suit against Defendant, Paul
Johnson, alleging that Defendant purchased and used devices
designed primarily for the purpose of pirating DirecTv's
satellite transmissions in derogation of DirecTv's rights to
receive compensation for receipt of its signals. Plaintiff seeks
civil damages in the form of actual or statutory damages, as well
as injunctive relief pursuant to 18 U.S.C. § 2512, as set forth
in Count III of the Complaint. Plaintiff also seeks damages for
civil conversion in Count V of the Complaint.
Presently before the Court is Defendant's Motion to Dismiss
Count V (conversion) of Plaintiff's Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) and Counts I, II, III, and IV on
statute of limitations grounds.
In reviewing a motion to dismiss, the court considers all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). A plaintiff is not required to plead the facts
or the elements of a claim, with the exceptions found in Federal
Rule of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002) (Walker). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible to hypothesize facts, consistent with the complaint,
that would make out a claim." Graehling v. Vill. of Lombard,
Ill., 58 F.3d 295, 297 (7th Cir. 1995).
A reading of the Complaint supports the following summary of
the alleged operative conduct of the parties.
DirecTv is a California-based company in the business of
distributing satellite television broadcasts throughout the
United States. DirecTv developed a satellite system capable of
transmitting various digitized video and audio signals to homes
and businesses nationwide to be used for entertainment purposes,
also known as "satellite programming." DirecTv relays digital
signals from the United States to satellites orbiting many miles
above Earth. Those signals are then broadcast back to Earth,
where fixed outdoor satellite dishes can receive DirecTv's
satellite programming. The satellite dish is connected by cable
to an indoor satellite receiver, which is then connected by cable
to a television monitor.
The signal beamed from space to various areas in the United
States can be received by installing a satellite dish and paying
DirecTv a fee to use its television broadcast services. DirecTv
uses encryption technology to digitally scramble the signal. The
signal is unusable before it is unscrambled. Each indoor
satellite receiver contains a removable access card that holds a
computer-type chip that stores and applies the information
necessary to unscramble the satellite signals received through
the satellite dish. DirecTv electronically programs these access
cards to close or open television channels based upon the
particular programming package a customer has purchased. The encryption technology used by DirecTv has not prevented the
development of devices and equipment (pirate access devices)
which provide the user with access to all of DirecTv's satellite
programming with no payment to the company.
On or about July 6, 2000, Defendant ordered a programming
device from "Whiteviper" which may be useful in programming
DirecTv access cards. DirecTv obtained Whiteviper's records,
including those of Defendant's purchase, via settlement on
September 14, 2001. DirecTv originally filed suit against the
Defendant on September 10, 2003.
The Defendant received the satellite programming by means
including but not limited to: (a) maintaining satellite dishes
capable of receiving satellite programming on television monitors
and further maintaining electronic devices which enable the
Defendant to unscramble, receive, and exhibit encrypted satellite
programming transmissions without authorization; and/or (b) by
such other means to effectuate the unauthorized reception of the
satellite programming which are unknown to DirecTv and known only
Defendant contends that Count III of Plaintiff's Complaint
should be dismissed because, as a matter of law, 18 U.S.C. § 2520
does not support a civil cause of action for violations of
18 U.S.C. § 2512, and that Counts I, II, III, and IV should be
dismissed upon statute of limitations grounds. In addition,
Defendant contends that Count V of Plaintiff's Complaint should
be dismissed because the Plaintiff cannot state a cause of action
for the alleged conversion of satellite signals.
Count III alleges a private cause of action under Section 2512.
As previously found by this Court and other courts, Section 2512
does not create a private cause of action, express or implied.
See DirecTv, Inc. v. Westendorf, 2003 WL 22139786 at 2, (N.D.
Ill. Sept. 16, 2003); DirecTv, Inc. v. Cardona,
275 F.Supp.2d 1357, 1368 (M.D. Fla. 2003); DirecTv, Inc. v. Hinton, 2004 WL
856555 at 3, (N.D.Ill. Apr. 21, 2004); DirecTv, Inc. v. Stolz, 2004 WL
1490261 at 3, (N.D.Ill. July 1, 2004). Accordingly, Count III is
Count V seeks relief for civil conversion and alleges that
Defendant has unlawfully converted Plaintiff's property for the
Defendant's use and benefit and that such conversion was done
intentionally and wrongfully by the Defendant to deprive the
Plaintiff of its proprietary interests and for Defendant's direct
benefit and advantage.
As previously found by this Court and other courts in other
DirecTv suits alleging the same or similar facts, no cause of
action for conversion under Illinois law lies for an intercepted
signal. Accordingly, Count V is dismissed. See DirecTv, Inc. v.
Maraffino, 2004 WL 170306 (N.D. Ill. Jan. 23, 2004); DirecTv,
Inc. v. Allen, 2004 WL 170328 (N.D. Ill. Jan. 23, 2004);
DirecTv, Inc. v. Patel, 2003 WL 22682443 (N.D. Ill. Nov. 12,
2003); DirecTv, Inc. v. Geenen, 2003 WL 22669029 (N.D. Ill.
Nov. 10, 2003); DirecTv, Inc. v. Hinton, 2004 WL 856555 at 4,
(N.D.Ill. Apr. 21, 2004) (collectively finding no cause of action
for conversion under Illinois law for intercepted signal).
Defendant also argues that Count II was not filed within the
applicable statute of limitations.
Count II alleges a cause of action pursuant to
18 U.S.C. § 2511. Section 2520(e) provides that a cause of action under the
"Wiretap Act" (18 U.S.C. §§ 2511 and 2512) is subject to a
two-year limitations period.
In the instant case, Defendant purchased the items in question
on July 6, 2000. DirecTv filed its initial suit on September 10,
2003. DirecTv alleges that it first discovered the Defendant's
conduct as a result of documents that it received on September
14, 2001, after a settlement had been negotiated in another case.
Defendant cites to Plaintiff's Complaint in which it alleges that
by early 2001, DirecTv was aware of this type of piracy; and by
May 25, 2001, it was executing writs of seizure to raid suspected wrongdoers. However, based on the
allegations of the Complaint, DirecTv's awareness of piracy and
its execution of writs in May 2001 were not related to the
present defendant. The Complaint clearly pleads that DirecTv was
not aware of the instant defendant until after September 14,
"A statute of limitations begins to run once a plaintiff has
knowledge which would lead a reasonable person to investigate the
possibility that [their] legal rights had been infringed." CSC
Holding, Inc. v. Redisi, 309 F.3d 988, 992-993 (7th Cir. 2002).
Actual knowledge is not the standard as it must be "at least
enough to put him on inquiry notice that his rights might have
been invaded" as the precise time of knowledge is irrelevant.
See Davis v. Zirkelbach, 149 F.3d 614, 618, (7th Cir.
Here, DirecTv must have had some awareness as to potential
wrongs prior to September 14, 2001, for without that possibility,
reason to seize records, as early as May 2001, is lacking.
However, the records as to this Defendant were not turned over
until September 14, 2001. As such, DirecTV did not have knowledge
which would have reasonably put it on notice to investigate the
possibility that their rights had been infringed as to this
Defendant until September 14, 2001. Accordingly, Count II was
filed within the applicable statute of limitations.
Defendant also seeks dismissal of Counts I and IV on grounds
that they also were not timely filed. As to these counts, there
is no explicit statute of limitations provided by
47 U.S.C. § 605, so the court is left to infer that provision from another
federal statute that is clearly analogous to the legislation.
See Dell v. Board of Education, Township High School District
113, 32 F.3d 1053 at 1058 (7th Cir. 1994). Section 605 concerns
itself with unauthorized publication or use of an unauthorized intercepted signal. 47 U.S.C. § 605. Defendant
proposes the Court adopt the two-year statute of limitations
found in the Wiretap Act, 18 U.S.C. §§ 2511 and 2512. The Wiretap
Act addresses the unauthorized interception of a signal. DirecTv
proposes the Court adopt the three-year statute of limitations
found in the Copyright Act, 17 U.S.C. §§ 504-505. Both the
Copyright Act and the Wiretap Act have similar remedial
structures providing a prevailing plaintiff with the choice of
actual or statutory damages and the possibility of a
discretionary increase in statutory damages based upon the
culpability of the wrongdoer, and an award of costs and
attorney's fees. However, the Wiretap Act is more analogous to
the issue at hand, especially with no concerns about copyrights
before the Court. The similarities between unauthorized
publication or use of an unauthorized intercepted signal and
unauthorized interception of a signal leads this Court to adopt
the two-year statute of limitations period to Counts I and IV.
For previously stated reasons, this leaves the current issues
within the two-year period.
For the foregoing reasons, Defendant's Motion to Dismiss Counts
I, II, III, IV and V is granted in part and denied in part.
Counts III and V of Plaintiff's Complaint are dismissed.
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