Will Software Be defined As Being A device In Law ?

[Gunsmoke2 - GS2]

Ward supplied a response to the motion for sumarry judgment. He said the law did not include software. The law we are talking about is not the DMCA but 47 U.S.C. § 605(e)(4).


So the Judge order Echo supply a response to that issue. They have. I have attached it along with the order by the Judge.


So do you think Echo's response on why software should be considered as a device will be accepted and agreed to by the Judge. ? I am not sure their reasoning will be accepted for the Judge to rule that the law speaks to software also.

[Pam]

I think the correct argument is, can they prove that he actually knowingly and purposely intercepted a signal? They have to prove intent, that he intentionally created and watched the intercepted signal. I could post files on websites that are gibberish and can't intercept anything and I could program cards that don't, "to my knowledge," intercept anything. The law doesn't seem to be written like drug laws where someone knowingly sells drywall powder and claims it is cocaine but ends up in about the same circumstances as someone who did sell cocaine.

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 the 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

He can claim that he was just trying to be a big shot by pretending to know something about FTA and is clueless about programming, files and FTA related devices. He has to knowingly be involved and have a reason to know.

I think it might be hard to prove what someone knows unless the idiot committed the act in front of witnesses and showed the witnesses the actual interception and violation. Reading his own posts, he might be egoistically stupid enough to prove to DN just how stupid he is.

[Gunsmoke2 - GS2]

The judge ruled that extends to software. I will post the docs shortly.




GS2

[Homesl|ce]

Is this the document..I only found one..

[Gunsmoke2 - GS2]

Is this the document..I only found one..


Yes Thanks. ! there was another one but its just a one paragraph summary of the judgment.




GS2

[jammmer]

All sites, hosting files, on their servers, with USA ownership, will be the first in Mr JL Gee and the Relentless cross hairs. I would think that you could probably see that happen real quick, probably even before most start dropping their files sections. Low cost, big bang for your buck step for Gee & The Relentless!

Will they go as far to extend it to sites hosting referral links? That,s something that would be in the next wave I would think. I would have to "guesstamate" that probably 75% if not more of current FTA sites, will fall under all of the above categories. So, one of the few things that has been created properly with the newer systems is access to updates via servers, this would enable users to keep going and not cross that fine line in regards to web support and banter only coming from websites.

Oh well, I think this was not total shock other then the speed of these proceeding, all in all, my feelings is that the speed of the many trials tells me that the dependents have little or no money to defend themselves. Having the ability to make defendants roll over and talk makes things much quicker to finish up, its usually a defense lawyer and his team that scour the various opportunities and past judgments that slow the process down, criminally and civil alike.

Well a "culling of the flock" usually happens in cycles and I think there is another just around the corner by the looks of it. I know for one thing, you cant be safe enough for a little so called "Free TV" anymore!

Cheers

[Pam]

I agree that the defendants don't have enough money to fight DN which is why DN is pursuing them in civil and not criminal court. It looks like Ward ran out of money and got what amounts to a default judgement against him.

The high damages are to frighten people like a "Shock and Awe." DN never expects to collect. Surely the defendants are getting DN to agree not to pursue criminal charges if they settle with DN.

Notice the few people with enough money to fight DN are going to prison. Probably a better idea to lay down and take the DN terms.

I bet DN already knows where most of the DN receiver nodes are and can shut them down anytime they want. It looks like an even bet that Slinger, Nfusion and KBox were all sharing.

Did you see that Nfusion seems to have a new site, nfusionteamusa (I think that's it.) Maybe Nfusion found another distributor who can afford to fund SUNS but with the current DN witch hunt, I can't imagine who is dumb enough to get into the business.

[slimsilver]

Its not that he had no money he was smart enough to assert
his Fifth Amendment privilege and not run his mouth.
This is a ground breaking judgment for D**h and they know it and a blow to the whole community that will be felt for a long time.
Anyone site in North America will be a target.

[Pam]

I can't remember exactly how the Fifth works in a civil trial. I do remember the confusion that was created during the O.J. criminal trial because a civil trial was going on at the same time. I don't recall O.J. attending the civil trial.

The problem is a defendant can refuse to testify in a criminal trial but not always in a civil trial. It's hard to take the Fifth if criminal charges are not pending. A civil judge can jail a defendant for refusing to testify. I've always found that amazing that one's freedom can be taken from him without a trial.

The answer given for a contempt jailing, is that the person has the keys to the cell if he complies with the judge's order, he can free himself. What if he doesn't have the information like the woman who was jailed for a few years for refusing to testify against Clinton because she said she didn't have any information? What if the answers will subject the person to future criminal charges? The only way around that is immunity for any testimony in the trial. I do know one can take the Fifth in a civil trial, but unfairly, the defendant can be forced to testify and not know how he might trip himself up.

I think Ward couldn't afford the thousands it takes in legal fees and his attorney had told him he can't win, so he caved. I can't blame him for that. When you can't win why blow everything you have? I think the proof is the damages were entered in the Summary Judgement and not in a later hearing on damages. Summary Judgement disposes of the issues but not the damages. Usually it's the defendant who files for Summary Judgement to prove the plaintiff cannot prevail at trial, not the plaintiff filing who files for SJ. It's used when the suit lakes evidence or the law doesn't support the suit.

That means that Ward wouldn't agree to a settlement which would have been more in his interest. Possibilities are that Ward told DN he didn't have representation so DN filed a SJ; Ward wasn't responding at all to court documents or Ward didn't know what to do without representation so DN took advantage of him.

Hopefully Ward's attorney did make a deal with DN not to pursue criminal charges. I don't think DN wants to go that route anyway. I don't think DN really wants to jail people for watching TV but it does want to scare people into stopping the pirating.

[bigtoes]

I can't remember exactly how the Fifth works in a civil trial. I do remember the confusion that was created during the O.J. criminal trial because a civil trial was going on at the same time. I don't recall O.J. attending the civil trial.


I see you're still making it up as you go. The criminal trial began in Jan '95 and the verdict delivered on Oct 3, 1995. Civil trial opening statements began on Oct 23, 1996 (a year later).

Dunno how OJ skipped the civil trial considering the fact he testified (Nov 22, 1996 and again on Jan 10, 1997)

some day you'll actually get one right, though I doubt it will be in this decade

[diasharp]

maybe pam is the lunatards new wife to be????

If not its too bad they would make a great pair.

lol

D#

[Pam]

I see you're still making it up as you go. The criminal trial began in Jan '95 and the verdict delivered on Oct 3, 1995. Civil trial opening statements began on Oct 23, 1996 (a year later).

Dunno how OJ skipped the civil trial considering the fact he testified (Nov 22, 1996 and again on Jan 10, 1997)

some day you'll actually get one right, though I doubt it will be in this decade

maybe pam is the lunatards new wife to be????

If not its too bad they would make a great pair.

lol
D#

I apologize for intimidating you two. I guess if I was like you I also would be offended, intimidated and insulting toward people I don't know on the internet who make me feel stupid.

I tried to recall the O.J. trials from memory, and if I knew it would be taken so personally by the two of you, I would have looked it up. I didn't realize the O.J. timeline was such a personal issue for the two of you.

Something you should be aware of is that normal people who read these posts know that your attacks are based on your own insecurities and lack of social skills. Most people have the ability to point out in a civil manner if someone has incorrect information. You and your friends attack the person instead of the issue because you think acting like a thug is cool. I can't imagine what kind of jobs you people have. Obviously jobs that require a low level of social skills.

The correct information on concurrent civil and criminal trials and taking the Fifth during a civil trial:

http://www.nixonpeabody.com/publications_detail3.asp?ID=468

Fifth Amendment right in Civil Proceeding:
Who is entitled to assert the Fifth Amendment privilege against self incrimination?

An individual may assert the Fifth Amendment privilege against self-incrimination. A corporation has no protection under the Fifth Amendment privilege. See Curcio v. United States, 354 U.S. 118, 122 (1957); United States v. White, 322 U.S. 694 (1944). A recognized exception to this rule is where the only corporate custodian of records may violate his own rights against self-incrimination by responding to questions put to the corporation. Curcio, 354 U.S. 118, 122 (1957). Also, an employee may invoke the privilege if the specter of individual liability exists. In re: Corrugated Container Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979).

How does the assertion of a Fifth Amendment privilege against self incrimination affect a civil action?

In the federal context, it is well settled that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) ; United States v. Stelmokas, 100 F.3d 302, 310–11 (3d Cir. 1996), reh’g en banc denied, 1997 U.S. App. LEXIS 1244 (3d Cir. 1997); National Acceptance Co. of Am. v. Batchalter, 705 F.2d 924, 930 (7th Cir. 1983). The admission or denial of such evidence turns on whether its probative value is substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997).

The Second Circuit has previously approved of the admission of an assertion of the Fifth Amendment in similar circumstances. Brink’s, Inc. v. The City of New York, 717 F.2d 700 (2d Cir. 1983). In Brink’s, the City discovered that approximately $1 million in parking meter revenue was missing from the amounts collected by Brink’s under a contract with the City. A key issue for the claim against Brink’s was the extent of defendant’s knowledge of thefts of the meter money by its employees. Several Brink’s employees had already been convicted or had pleaded guilty to theft and related charges. At trial, the City called them to the stand, knowing that they would invoke the Fifth Amendment. The trial court allowed the testimony to go forward, over Brink’s objection, and the Second Circuit affirmed.

The court ruled that the refusal to answer questions upon asserting Fifth Amendment privilege is relevant evidence from which the trier of fact in a civil action may draw whatever inferences are reasonable under the circumstances. 717 F.2d at 710. It engaged in the familiar prejudice versus probative value analysis under F.R.E. 403. Id. On the probative value side, the witnesses’ invocation of the privilege in response to questions about their knowledge and participation in the thefts was admissible, due to the high probative value of this evidence. Id. The court found that the employees’ knowledge of the thefts was a key issue in allowing the jury to draw an inference regarding Brink’s knowledge or negligence. Id.

On the prejudice side, the court observed that prejudice in this context means “inflammatory” evidence, rather than evidence which is merely harmful to the party’s position. Id. By ruling that the evidence was admissible, the court concluded that Fifth Amendment assertions, while possibly harmful to a party’s position or credibility, are not inflammatory. The court thereby necessarily found that the evidence’s probative value outweighed any prejudice.5

The refusal of a party to answer or testify on Fifth Amendment grounds should be admitted where the unanswered questions lie close to substantive issues of the case. In East Coast Novelty Co. v. The City of New York, 842 F. Supp. 117 (S.D.N.Y. 1994), a case concerning the seizure of plaintiff’s entire inventory of fireworks by the New York City Police Department, the court upheld the finding of a negative inference from plaintiff’s invocation of the Fifth Amendment. Establishing that the plaintiff company was a front organization for organized crime was a key element of the City’s case. The refusal of the two principals of the plaintiff corporation to answer deposition questions concerning their alleged involvement in organized crime, as well as their alleged violations of state and federal fireworks laws, was considered sufficiently probative (“obviously relevant”) that adverse inferences were drawn against them. Id. at 121.

Civil Trial during Criminal Trial:

Is the government empowered to conduct parallel proceedings?

Yes. In United States v. Kordel, 397 U.S. 1 (1970), the Supreme Court stated that “[I]t would stultify enforcement of federal law to require a government agency…invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.”

Federal statutes which provide for parallel proceedings

While virtually any action can become a concurrent criminal/civil matter, a number of federal statutes expressly provide for such a dual track. These statutes include the Sherman Act, 15 U.S.C. §§1–3, 15, 15(a) (1988) (antitrust); the Securities Act of 1933, 15 U.S.C. §77t (1988); the Internal Revenue Code, 26 U.S.C. §7201 (1988); and the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961 et seq.

Is the district court empowered to stay the civil proceedings in favor of the criminal proceedings?

Yes. The Supreme Court has indicated that a district court may stay civil proceedings in favor of a criminal trial “when the interests of justice seem to require such action.” Kordel, 397 U.S. at 12, n.27 (1970). Because adverse inferences may be drawn in a civil case from the assertion of Fifth Amendment rights, see Baxter v. Palmigiano, 425 U.S. 308 (1976), the court may stay the civil action until the criminal matter is resolved. See SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1376 (D.C. Cir.), cert. denied, 449 U.S. 993 (1980) (“[A] noncriminal proceeding, if not deferred, might undermine the party’s Fifth Amendment privilege against self-incrimination.”); Dienstag v. Bronsen, 49 F.R.D. 327, 329 (S.D.N.Y. 1970) (civil discovery stayed because necessary to protect defendant’s Fifth Amendment privilege against self-incrimination); United States v. A Certain Parcel of Land, 781 F. Supp. 830, 834 (D.N.H. 1992) (discovery stayed in civil forfeiture action because protective order would not sufficiently protect Fifth Amendment privilege).

In determining whether a stay is appropriate, courts look to the following factors: (1) the private interests of the plaintiff in the civil litigation without a stay; (2) the interests and burdens on the defendant with a stay; (3) the convenience of the courts; (4) interests of nonparties to the civil litigation; and (5) the public’s interest. See, e.g., Keating v. OTS, 45 F.3d 322, 324–25 (9th Cir.), cert. denied, 516 U.S. 827 (1995); FSLIC v. Molinaro, 889 F.2d 899, 902–903 (9th Cir. 1989); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980).

However, there is no absolute constitutional right to a stay of a civil proceeding pending disposition of a related criminal matter. Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977), cert. denied, 434 U.S. 1030 (1978); see also In re: Melissa M., 127 N.H. 710, 712 (1986) (citing federal cases). The law recognizes “the principle that protection of the public interest may often require proceedings simultaneously on two fronts, and that it would unduly compromise the public interest to force the government to choose between a civil and criminal course of action.” Mainelli v. United States, 611 F. Supp. 606, 615 (D.R.I. 1985); see also United States v. Lot 5, 23 F.3rd 359, 364–65 (11th Cir. 1994), cert. denied, 513 U.S. 1076 (1995); Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902–03 (9th Cir. 1989).

[bigtoes]

I apologize for intimidating you two. I guess if I was like you I also would be offended, intimidated and insulting toward people I don't know on the internet who make me feel stupid. intimidated by a chickie that lies, bullshits, lies and then stacks on bullshit?
not now, not ever

I tried to recall the O.J. trials from memory, and if I knew it would be taken so personally by the two of you, I would have looked it up. I didn't realize the O.J. timeline was such a personal issue for the two of you. no you simply made up a story and was too lazy to ensure that your bullshit was even possibly true. what is funny is that you talk about genetics vis a vie education -- well, here's your dunce cap again pammy!!!!

Something you should be aware of is that normal people who read these posts know that your attacks are based on your own insecurities and lack of social skills. Most people have the ability to point out in a civil manner if someone has incorrect information. You and your friends attack the person instead of the issue because you think acting like a thug is cool. I can't imagine what kind of jobs you people have. Obviously jobs that require a low level of social skills. normal people don't post bull and then push it like it is factual, rather then just another pammy fantasy. now we're gonna get a speech about ms PammyEwing and court cases, gramps and computer companies... then tomorrow she'll wake up again and be mrsUnderdog

The correct information on concurrent civil and criminal trials and taking the Fifth during a civil trial.. ahh, right back to the ole "load em up with useless data so they'll fall asleep rather then point out that pammy is in fantasy land"

jerry springer wont even take u

[Pam]

Since I daughters older than you nitwits, I don't think I'm a chickie. Are you two such narcissistic that you think everyone on the internet is exactly like you? Is it too far over your heads for you to understand that you do not know the other posters? It's amazing that your minds are so small, you think people are who you think they are.

Silly kids.

[bigtoes]

Since I daughters older than you nitwits, I don't think I'm a chickie. Are you two such narcissistic that you think everyone on the internet is exactly like you? Is it too far over your heads for you to understand that you do not know the other posters? It's amazing that your minds are so small, you think people are who you think they are.

Silly kids.

hopefully the daughters didn't inherit your inability to comprehend or learn.

lets read this again shall we....

I can't remember exactly how the Fifth works in a civil trial. I do remember the confusion that was created during the O.J. criminal trial because a civil trial was going on at the same time. I don't recall O.J. attending the civil trial.

you remember the confusion?

not "wasn't there confusion" or "it must of been confusing"

you REMEMBER the CONFUSION

now, keep that in mind while reading absolutely anything/everything that pammykins writes. when you think she might have a point -- remember that she 'remembered confusion' from something that absolutely NEVER happened

much the same as those hundreds of court cases
or the case where she dumbed off to the judge
or the computer company
or gramps and fdr
or JJ naming DC or newf2atv as part of the smith holdings

make it up, before u go go

[jammmer]

I can't remember exactly how the Fifth works in a civil trial. I do remember the confusion that was created during the O.J. criminal trial because a civil trial was going on at the same time. I don't recall O.J. attending the civil trial.

The problem is a defendant can refuse to testify in a criminal trial but not always in a civil trial. It's hard to take the Fifth if criminal charges are not pending. A civil judge can jail a defendant for refusing to testify. I've always found that amazing that one's freedom can be taken from him without a trial.

The answer given for a contempt jailing, is that the person has the keys to the cell if he complies with the judge's order, he can free himself. What if he doesn't have the information like the woman who was jailed for a few years for refusing to testify against Clinton because she said she didn't have any information? What if the answers will subject the person to future criminal charges? The only way around that is immunity for any testimony in the trial. I do know one can take the Fifth in a civil trial, but unfairly, the defendant can be forced to testify and not know how he might trip himself up.

I think Ward couldn't afford the thousands it takes in legal fees and his attorney had told him he can't win, so he caved. I can't blame him for that. When you can't win why blow everything you have? I think the proof is the damages were entered in the Summary Judgement and not in a later hearing on damages. Summary Judgement disposes of the issues but not the damages. Usually it's the defendant who files for Summary Judgement to prove the plaintiff cannot prevail at trial, not the plaintiff filing who files for SJ. It's used when the suit lakes evidence or the law doesn't support the suit.

That means that Ward wouldn't agree to a settlement which would have been more in his interest. Possibilities are that Ward told DN he didn't have representation so DN filed a SJ; Ward wasn't responding at all to court documents or Ward didn't know what to do without representation so DN took advantage of him.

Hopefully Ward's attorney did make a deal with DN not to pursue criminal charges. I don't think DN wants to go that route anyway. I don't think DN really wants to jail people for watching TV but it does want to scare people into stopping the pirating.


In Canada i am positive that its a little different, Supreme & Criminal Courts Cases, you have to present for all aspects except - "findings" proceedings which your lawyer can appear for you. Also the ability to presentation by video is some cases

Civil you have to attend the initial charge as to acknowledge it , they can actually impose sentence after with out a defendant present.

Cheers

[oolloo]

jeez tis is deteriorating into name calling

Fact Kwak, and everyone involved made millions of dollars, don't kid yourselfs, however everyone is doing thier best to hide the $$$$ somewhere and NOT waste it on laweyers and bullshit, you know why?

cause we all know it was all illegal to begin with, thats why dishnet is winning, and thats why university educated lawyers and so on are making a case. But screw them why let them have all the money in fee's better to take aa punishement, do your time, come out and be rich, even if you gotta wait 20 years to be rich kwak will be only 53 in 20 years,

if you guys think these guys made no money or have none, then give your head a shake, this was all about money the "free" in fta is bs., kwak, robert, phil all made more money than most of you will see in your entire life. Ariza (David fuss made hundreds of millions ) and he's not even as big as the viewsat crew .

Dishnet is winning cause the law is on thier site and they have a licence from the gov for "air" the gov gets a chunk of $$$ from dn in spectrum license.

your excuses and pity for robert & kwak are misplaced, if you where in his shoes he would not even give 2 shits. I know that for a fact.

your reall pitty is that "now you will pay full price for tv" or it will be not as cheap as it was for "free"