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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.