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7th Circuit overrules itself in satellite TV case

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The 7th Circuit Court of Appeals overruled one of its own decisions from 20 years ago, finding that judges have discretion in whether penalties are imposed on those who steal encrypted television satellite signals or help others take them without paying for the service.

Deciding today in the case of DirecTV v. David Barczewski and Jonathan Wisler, Nos. 06-2219 and 06-2221, the three-judge appellate panel mostly affirmed a ruling from then-U.S. District Court Judge David F. Hamilton from the Southern District of Indiana.

The case goes back to jury verdicts against Jonathan Wisler and David Barczewski, who respectively had intercepted encrypted signals from the company’s satellite system without authorization and furnished devices to help others steal the signals. Both defendants bought electronic gear from a merchant that had advertised its products designed to help facilitate the theft of those signals and both participated in online discussion groups about decrypting those signals without paying.

But the case also involves penalties imposed by the District judge, and that’s a legal issue more significantly addressed in this case that the appellate court heard arguments on in February 2007. While affirming Judge Hamilton’s decision, the appellate judges found that one of its own decisions from 1990 that Judge Hamilton relied on wasn’t correct in finding that judges are mandated to give out maximum damages calculated under 18 U.S.C. §2520(c)(2), which says, “courts may assess as damages” involving the use of satellite signals taken without payment or permission.

In Rodgers v. Wood, 910 F.2d 444, 448 (7th Cir. 1990), the appellate court in Chicago held that the highest penalty calculated under that federal law section is mandatory – effectively leaving District judges without any discretion about whether or not damages should be assessed and that those should be imposed at the highest level.

The Rodgers ruling was the nation’s first appellate decision on that issue of statutory penalties being mandatory or permissive after Congress in 1986 overhauled that section of federal law. Specifically, Congress revised the language from “shall” to “may” in assessing those damages. Since then, other Circuits have analyzed that issue in the past 15 years and disagreed with Rodgers - the 4th, 6th, 8th, and 11th Circuits have held that §2250(c)(2) allows judges to not award damages.

Now, the 7th Circuit is following suit.

“Developments that leave this Circuit all by its lonesome may justify reexamination of our precedents, the better to reflect arguments that may not previously have been given full weight and to spare the Supreme Court the need to intervene,” Chief Judge Frank Easterbrook wrote for the panel that also included Judges Joel Flaum and Diane Sykes. “We overrule the portion of Rodgers holding that award of the maximum damages specified in §2250(c)(2) is mandatory. We conclude that the District Court has discretion not to award statutory damages under the statutory formula.”

Dismissing what the defendants argued, the panel wrote that the federal statute doesn’t require judges to set penalties according to wealth and the economics don’t matter.

“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,” Chief Judge Easterbrook wrote. “But judges need not go easy on hourly wage-earners who decide to steal TV signals, any more than they need to 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.”

The case is remanded to the Southern District on the issue of statutory damages against Wisler.
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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