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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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