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DIRECTV, INC. v. BOROW

January 3, 2005.

DirecTV, Inc., Plaintiff,
v.
Randy Borow, Defendant.



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Plaintiff brings its Complaint for violations under the Federal Communications Act, 47 U.S.C. § 605, the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1), and the Federal Wiretap Act, 18 U.S.C. § 2511(1)(a). Plaintiff brings its Motion for Summary Judgment under Fed.R.Civ.P. 56(c). For the following reasons, Plaintiff's Motion for Summary Judgment is granted.

I. BACKGROUND*fn1

  A. Facts

  This case arises out of the unauthorized use, or "piracy," of Plaintiff DirecTV's ("DT") satellite television, by Defendant Randy Borow ("Borow"). Borow is a resident of Illinois. DT is incorporated in California, and provides digital satellite television programming to its registered customers throughout the United States. In order to receive this satellite television, customers must purchase hardware such as a satellite dish, an integrated receiver/recorder ("IRD"), and an access card that operates the IRD. DT encrypts its programs so that only paid customers may view the programming. The programing is transmitted via an encrypted signal to satellites that orbit the earth. The signal is then relayed back to earth, where it can be received by customers who have purchased the access card, IRD, and satellite dish. When a subscriber buys a programing package, and installs the dish, IRD, and access card, he or she is then able to access the encrypted television signal. A subscription to DT and purchasing the hardware is the only lawful way a consumer may view satellite television. In order to prevent the unauthorized use of its signal, DT periodically updates its security system by installing and administering electronic countermeasures ("ECMs"). ECMs sends a signal that targets access cards that have not been authorized by DT, and disables them. In response to DT's security measures, satellite pirates*fn2 have developed emulators ("EMU"s) that circumvent DT's encryption and simulate certain functions of the DirecTV access card. The EMU is hooked up to a computer that sends a signal to the IRD, which decrypts the television signal. In essence, the emulator makes the satellite believe that the unauthorized user has a valid access card and subscription.

  Borow was the owner of the America Online ("AOL") account name "ump25@aol.com" until the summer of 2003. Between November 2000 and March 2003, over 1,000 messages were posted from the email address ump25@aol.com, on various Internet forums that are devoted to the piracy of DT's satellite signal. Such forums included "alt.dss.hack" and "piratesden.com." These messages included specific technical instructions on how to obtain DT's encrypted signal. In these pirate forums, ump25 expressed his proficiency in satellite piracy, and stated that he helped several relatives and friends set up their EMUs to pirate DT's signal. In September 2000, Borow set up a PayPal account*fn3 under the name ump25@aol.com. The shipping address attached to this PayPal account is the same as Borow's address in Lisle, Illinois. PayPal's records for ump25@aol.com's account shows that Borow used this online service to buy a six-month subscription to Decoder News, a piracy magazine. This subscription allowed Borow to access private areas on the magazine's website that were devoted to satellite piracy. In May 2002, Borow's account was used to renew a subscription to Pirates Den, another Internet forum related to piracy. In addition, PayPal's records show that Borow used this account to purchase twenty-four EMUs and two related software programs.

  On October 16, 2003, five months after DT filed its Complaint, Borow contacted PayPal and told it that he thought someone had used his account without his permission. However, Borow never filed an online complaint form with PayPal, or pursued the matter any further. Later that month, Borow used a software program called Evidence Eliminator to erase evidence requested by DT from his computer. See Minute Order of 2/25/2004. Moreover, DT's forensics expert was able to recover some files from Borow's computer. These files included certain programs that are used by satellite pirates to intercept DT's encrypted signal. In addition, this expert was able to retrieve files that listed the names of piracy websites that Borow visited, including the private areas of Pirates Den that were only available to subscribers. In light of all these facts, Borow asserts that somebody else is responsible for these actions. Pl.'s Stmt. of Mat. Facts, Ex. 2 at 80-81, 127. Borow insists that he never lent his computer to anybody, and kept it in his apartment under lock and key. Id. at 26. B. Procedural History

  DT filed its Complaint on April 16, 2003. On December 11, DT filed a Motion for Sanctions, and a Motion to compel Borow's deposition. On December 19, the court ordered Borow to respond to DT's Motion for Sanctions for spoilation of evidence, and granted DT's Motion to compel Borow's deposition. On February 25, 2004, the court granted DT's Motion for Sanctions. Specifically, the court found that Borow deliberately destroyed evidence requested by Plaintiff. Then, on July 9, 2004, DT filed its Motion for Summary Judgment. Borow filed a Motion for extension of time to respond to the Summary Judgment motion, yet never actually filed any response. Therefore, DT's Motion for Summary Judgment has not been opposed by Borow as of this date.

  II. DISCUSSION

  A. Standard of Review

  Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999).

  In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

  When a party moves for summary judgment, the court must view the record and all inferences in a light most favorable to the non-moving party. Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences construed in the nonmoving party's favor must be drawn from specific facts identified in the record that support that party's position. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir. 1994). Under this standard, "[c]onclusory allegations alone cannot defeat a motion for summary judgment." Thomas v. ...


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