NagraStar Letter Accuse You of DISH Network Piracy? Don't Panic.
This guide deals with letters or emails from DISH Network LLC and NagraStar LLC, collectively "NagraStar" (Emails generally from "[email protected]"). It will advise the reader of the nature of IKS passcodes, how they work, the alleged causes of action, and applicable defenses
Don't PanicHAVE YOU or someone you know received a letter or email (usually from "satscams") saying it was from DISH Network LLC and NagraStar LLC (collectively "NagraStar")? Does the letter or email accuse you of purchasing "IKS passcodes for pirate television services"? Does it include an offer to settle NagraStar's claims in exchange for a lump sum payment of $3,500 or more?
First things first, don't panic. You're not alone. NagraStar has been sending these demand letters for some time now and, contained therein, are claims that NagraStar has obtained business records establishing your alleged "wrongful conduct."
Now that you've been formally labeled a "pirate," you may have some questions.
What are IKS passcodes and how do they work?The term IKS refers to Internet Key Sharing (also known as Internet Card Sharing), or the process of using satellite TV receivers – whose standard software is re-flashed/restored with custom-made code – to enable key/card sharing.
Using this method, one digital satellite receiver, with a valid or legitimate smart card, serves as a host (“server”) and shares the smart card (“keys”) over the internet to de-scramble DISH Network’s encrypted signal and channels, thereby providing the end-user (you) with an unauthorized DISH Network subscription.
Most end-users don't even realize the codes they've purchased or accessed are illegal, as many of the sites/individuals selling these codes go out of their way to avoid referencing the source of the codes or their legality.
You may be wondering, so what does this have to do with me?
In short, NagraStar is alleging that you contacted one of these IKS Sellers and purchased either a code or a receiver/code combination, and that they have sufficient evidence of this alleged purchase (or purchases) to sustain litigation against you for same, which can amount to a minimum of $10,000 in statutory damages for each alleged purchase.
Let's move on to NagraStar's legal speak.
What laws does the NagraStar letter accuse you of violating?The NagraStar letter generally lists three federal causes of action that NagraStar threatens could be pleaded against you if you fail to respond.
The first is a cause of action for circumventing an access control measure in violation of the Digital Millennium Copyright Act (DCMA), 17 U.S.C. Sect. 1201(a)(1). This law states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." In other words, this provision of the DCMA makes it illegal for individuals to circumvent a copyright owner's security measures to gain unauthorized access to the owner's work(s).
The second cause of action is generally for receiving satellite signals without authorization in violation of the Federal Communications Act (FCA), 47 U.S.C. Sect. 605(a), which states, in relevant part, "No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto."
The third cause of action contained in the NagraStar letters focuses on intercepting satellite signals in violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. Sections 2511(1)(a) and 2520. This cause of action is similar to the above cause of action for receiving satellite signals without authorization.
Isn't there a statute of limitations for these piracy claims?The first defense that comes to many people's minds when receiving a NagraStar letter is statute of limitations. Many recipients are surprised to see alleged transactions from four or more years ago. Surely it must be too late for NagraStar to sue for these transactions, right? Well, not necessarily.
The statute of limitations for copyright infringement and other relevant statutes generally range from two to three years. However, the statute of limitations does not toll, or begin to run, until the infringement is discovered or when the claimant has a reasonable opportunity to discover the violation. As a result, the question is not when the alleged transaction occurred but, rather, when NagraStar learned - or reasonably should have learned - of any instances of substantial infringement.
That said, because NagraStar tends to allege that it received most of their "business records" within the past year and contend that it did not have any knowledge of the infringement prior to receiving said records, a statute of limitations argument may fall on deaf ears.
Are there any other defenses to NagraStar's claims?For each of the three causes of action mentioned above, other defenses are available. One such defense is for those who may be considered "innocent infringers."
Specifically, in relation to NagraStar's claim that you circumvented of an access control measure in violation of the Digital Millennium Copyright Act, that particular Act focuses on actual circumvention. Therefore, if you never actually used any device to circumvent DISH's technological measures, you may be able to claim a defense of "non-use" or "non-circumvention."
Likewise, in the context of receiving satellite signals without authorization, that cause of action allows for a reduction in the "award of damages to a sum of not less than $250" where "the violator was not aware and had no reason to believe that his acts constituted a violation of this section." 47 U.S.C. Sect. 605(C)(iii).
Lastly, in dealing with the cause of action for intercepting satellite signals in violation of the ECPA, this cause of action requires that a defendant act intentionally. As such, if you gained access to the satellite signal by accident or mistake, NagraStar may not be able to successfully pursue a claim against you under U.S.C. Sections 2511(1)(a) and 2520.
Those are just a few defenses. Of course, defenses are generally raised during litigation (which we are trying to avoid), can vary from claim to claim, and are dependent on the specific facts of each action.
Can I handle this myself or should I retain legal counsel?If you believe that settlement is in your best interest, you may be thinking to yourself, "Why do I need an attorney? Can't I do this on my own?" While recipients of these demand letters are absolutely free to contact NagraStar in an attempt to negotiate a settlement agreement on their own, they may still want to hire an attorney to review the terms of the settlement agreement to ensure they are protected from future claims and demand letters.
For example, without an attorney, you may agree to a settlement agreement that does not fully protect you or release you from NagraStar's claims. Similarly, without an attorney to present fact-based legal arguments related to the claims against you, you may end up paying more than you would have if you'd hired an attorney.
So is this NagraStar letter/Satscams email legit, or is it a scam?Many people's reaction to a letter or email from Satscams/NagraStar is to panic or ignore it. We don't recommend either. Panicking does nothing but increase your blood pressure and cause more stress. Ignoring, on the other hand, may lead to follow up letters and, potentially, a lawsuit.
Our law firm has a great deal of experience in responding to NagraStar's demand letters and negotiating settlements (including payment plans) with NagraStar, as well as negotiating the language of any settlement agreement.
Similarly, if you feel you have been wrongfully accused, we can help you develop a defensive strategy to fight against these allegations, first, in an attempt to ward off a potential lawsuit, and, secondly, to prepare in the event such a lawsuit is filed.
If you or someone you know has received a demand letter or email from Dish Network LLC, EchoStar Technologies, and NagraStar LLC -- or from Bert Eichhorn or "satscams" -- do not ignore it. It is not a scam. It's important to know your rights and how to protect yourself.
The law firm of Cynthia Conlin & Associates has highly skilled and experienced copyright lawyers who may be able to help you with your questions. Contact our Orlando attorneys today at 407-965-5519, or email me, Tony, directly via my email address, [email protected]