Opinion
CASE NO. 03-73760
April 16, 2004
ORDER
A. Introduction
This matter is before the Court on Plaintiff DirecTV Inc.'s Motion for Leave to Amend Complaint, Defendant John Mars, Jr. did not respond. For the reasons set forth below, Plaintiffs motion is GRANTED,
B. Background
DirecTV is a national provider of satellite television programming. DirecTV has filed thousands of lawsuits against individuals for allegedly intercepting its satellite signal to gain access to its television programming free of charge. More than one hundred of these nearly identical lawsuits have been filed in this district alone. On March 22, 2003, DirecTV filed a Complaint against Defendant John Mars Jr., alleging that Mars purchased and used a number of electronic devices to illegally intercept, decrypt, and view DirecTV's satellite transmissions.
According to DirecTV's Complaint, Defendant Mars ordered eleven alleged electronic signal theft devices on March 30, 2001. Specifically, DirecTV alleges that Defendant Mars ordered five "unloopers" and six "emulators" from a company called Canadian Securities Technology. See Complaint, at ¶ 16(a), DirecTV now alleges that it has uncovered several more purchases of similar equipment by Defendant Mars since the filing of the Complaint. DirecTV's proposed Amended Complaint recites the following purchases by Defendant Mars;
On or about May 15, 2000, Defendant purchased two "II cards" from an individual for $500.00.
On or about August 6, 2000, Defendant purchased two "DSS H Cards" from a pirate entity known as "Card Cleaners" for $610.00.
On or about January 23, 2001, Defendant purchased one or more Pirate Access Devices called "Emulators" from a pirate entity known as "Card Cleaners" for $90.
On or about March 25, 2001, Defendant purchased low H Cards from an individual for $300.00.
On or about March 30, 2001, Defendant purchased six "Unloopers" and five "Emulators" from the pirate entity Canadian Security and Technology.
On or about April 4, 2001, Defendant purchased at least two Pirate Access Devices called "Emulator/Unloopers" from two separate individuals for an undetermined amount of money.
On or about December 11, 2001, Defendant purchased an as-yet undetermined number of Pirate Access Devices from a pirate entity known as "Card Cleaners" for $199.
On or about December 19, 2001, Defendant purchased "emulation software" for $50,
On or about December 21, 2001, Defendant purchase a "BS H Card" from, an individual for $170.
On or about December 28, 2001, Defendant purchased an as-yet undetermined number of Pirate Access Devices from a pirate entity known as "Card Cleaners" for $189.
On or about August 8, 2002, Defendant purchased an as-yet undetermined number of Pirate Access Devices from a pirate entity known as "Card Cleaners" for $775.
Amended Complaint, at ¶ 7. Given the number of satellite signal theft devices allegedly purchased by Defendant Mars, DirecTV now seeks to amend its Complaint to more clearly state a claim under 47 U.S.C. § 604(e)(4), which penalizes any person who manufactures or distributes illegal satellite signal theft equipment. See Amended Complaint, at ¶¶ 19-23. In addition DirecTV's Amended Complaint also contains two new counts under the Digital Millennium Copyright Act of 1998, (hereinafter "DMCA"), 17 U.S.C. § 1201(a)(2)and 1201(b)(1), which penalize the distribution of devices designed to circumvent technological measures intended to limit access to and prevent unlawful copying of copyrighted material. DirecTV's motion for leave to amend, however, does not include any mention of the amended claims under the DMCA. Nevertheless, the Court will address all of DirecTV's proposed amendments.
C. Legal Standard
Leave to file an amended complaint shall be freely given when justice so requires. See FED. R. CIV, P, 15(a). To deny a motion for leave to amend a complaint the Court must provide a reason for denying the motion, such as undue delay, undue prejudice to the opposing parties, or because the amendment would be legally futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). When considering a motion to amend, a court should be guided by the underlying purpose of allowing amendments to facilitate a decision on the merits, rather than a decision based on procedural technicalities. See Foman, 371 U.S. at 181.
D. Analysis
i. DirecTV's claim under 47 U.S.C. § 605(e)(4)
DirecTV seeks to add a claim under § 605(e)(4) of the Federal Communications Act of 1934, (hereinafter "FCA"), 47 U.S.C. § 605, Section 605(e)(4) provides as follows:
Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that die device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both. For purposes of all penalties and remedies established for violations of this paragraph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.47 U.S.C. § 605(e)(4). Although § 605(e)(4) only mentions criminal penalties for distributing signal theft equipment, g 605(c)(3)(A) explicitly provides a private right of action by "any person aggrieved" by a violation of § 605(e)(4). See DirecTV v. Boonstra, 302 F. Supp.2d 822, 829 (W.D. Mich. 2004) (noting that § 605(e)(3)(A) provides a private right of action for a violation of § 605(e)(4)); DirecTV v. Adkins, No. 1:03CV00064, 2004 WL 719179, * 1 (W.D. Va. April 1, 2004) (same). The term "any person aggrieved" includes "any person engaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable programming." 47 U.S.C. § 605(d)(6). At this stage of the proceedings, and given Defendant Mars's failure to respond to DirecTV's motion to amend, it appears that DirecTV falls within the definition of "any person aggrieved." Furthermore, the number of signal theft devices allegedly purchased by Defendant Mars sufficiently supports DirecTV's assertion that he was involved in the distribution of illegal signal theft devices. Therefore, the Court finds that it would not be legally futile for DirecTV to add a claim under § 605(e)(4). In addition, the Court finds no evidence to suggest that the proposed amendment would result in undue delay or prejudice to the Defendant. ii. DirecTV's claim under 47 U.S.C. § 1201(a)(2)
DirecTV also seeks to add a claim under 47 U.S.C. § 1201(a)(2), which prohibits the trafficking of any technology that is primarily used to defeat a technological measure designed to control access to copyrighted material. Section 1201(a)(2) provides as follows:
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that —
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in conceit with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.47 U.S.C. § 1201(a)(2). According to DirecTV's allegations, Defendant Mars "provide[d], or otherwise traffic[ked]" in signal theft equipment that is both "primarily designed or produced for the purpose of circumventing" DirecTV's access control measures and "has only [a] limited commercially significant purpose" other than to circumvent those access control measures. Id. DirecTV further alleges that as a result of Defendant Mars's activities, DirecTV has been injured through the deprivation of subscription and pay-per-view revenues. The DMCA explicitly provides for a civil cause of action for "any person injured by a violation section 1201 or 1202 . . .," 47 U.S.C. § 1203(a). Accordingly, the Court finds that it would not be legally futile for DirecTV to amend its Complaint to include a claim under 47 U.S.C. § 1201 (a)(2). In addition, given the failure of Defendant Mars to respond to the present motion, the Court finds no evidence to suggest that the proposed amendment would result in undue delay or prejudice to the Defendant.
iii. DirecTV's claim under 47 U.S.C. § 1201(b)(1)
Finally, DirecTV moves to add a claim under 47 U.S.C. § 1201(b)(1), which prohibits the trafficking of any technology that is primarily used to defeat a technological measure designed to protect a copyright owner's rights in copyrighted material Section 1201(b)(1) provides as follows:
(b) Additional violations.-(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that —
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.47 U.S.C. § 1201(b)(1).
Section 1201(b)(1) differs from § 1201(a)(2) in that it prohibits trafficking in devices designed for the purpose of circumventing a technological measure "that effectively protects a right of a copyright owner . . . in a work or a portion thereof." Id. Section 1201(a)(2), on the other hand, prohibits trafficking in devices designed for the purpose of circumventing a technological measure "that effectively controls access to a work protected under this title," 47 U.S.C. § 1201(a)(2). Although § 1201(a)(2) and § 1201(b)(1) are worded similarly and employ similar tests, they are designed to protect two separate interests. See S. REP. No. 105-190, at 12 (1998). Section 1201(a)(2) prohibits devices primarily designed for circumventing technological measures that limit "access" to copyrighted work. Id. Section 1201(b)(1), however, prohibits devices primarily designed to circumvent technological measures that "limit the ability of the copyrighted work to be copied or otherwise protect the rights of the owner in the copyrighted work." Id. Since Defendant Mars has not responded to DirecTV's allegations, it is entirely possible that DirecTV's technological measures prevent the copying of protected work or "otherwise protect the rights of the owner in the copyrighted work." 47 U.S.C. § 1201(b)(1), Therefore, the Court finds that it would not be legally futile at this stage of the proceedings to allow DirecTV bring a claim under § 1201(b)(1). The Court also finds no evidence to suggest that the proposed amendment would result in undue delay or prejudice to the Defendant. Accordingly, DirecTV's motion for leave to amend will be granted.
E. Conclusion
For the reasons set forth above, Plaintiff's Motion for Leave to Amend Complaint is hereby GRANTED.
IT IS SO ORDERED.