Worrying legal decision in NL

2old4this

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#1
I know this is a British board, but there are many hobbyists out there who follow the wider satellite developments in Europe, especially on the legal front...

Today in the Netherlands a judge ruled against a satellite dealer ("MSat"). That the dealer was found guilty of illegally selling pre-programmed cards is not a surprise. What was a surprise, and what is worrying, is that the judge also ruled that the sale of blank cards and programmers by MSat was illegal. This ruling contradicts that of a different judge some months ago in an almost identical case against the Dutch dealer "Xtra-sat" (formely part of the STV group).

There will no doubt now be an appeal to higher courts, but if upheld, this will effectively stop the sale of such goods via satellite dealers in Holland. Whether or not the sale of the same goods through other outlets unconnected with satellite would also be illegal, is not addressed by the ruling.

The company that brought the action was the Dutch arm of Canal+. The Canal+ group operates in most European countries and may well see this as a green-light to pursue similar actions elsewhere.

2old
 

rolfw

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#2
Yes indeed worrying 2old, so how can they differentiate between a hobbyist, a security card access company a digital service provider or a mobile phone company. All of the above have equipment to program similar cards and I can almost guarantee that none of them require a license.

Rolf
 

2old4this

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#3
You've hit the nail on the head.
Precisely because there are so many unequivocally LEGAL applications for the same blank cards and programming devices, it would not be possible to rule them illegal per se. But the law is indeed an ass if it seeks to outlaw them selectively.

Are retailers of such goods to be obliged to first determine what the customer intends to do with them, before being allowed to complete the sale? What if the customer cites privacy laws and refuses to say what the intended purpose is?
Will satellite dealers simply set up sister companies operating from the same premises under a different name, just to sell those goods?
The case of MSat is already very interesting - that dealer also deals in GSMs, and the same cards & programmers are used for the quite legal purpose of editing and loading phonebooks onto the SIM chips. Will MSAT now be prevented from selling the devices, while a pure GSM dealer next door can quite happily continue to do so? Isn't that anti-competitive?
etc...

And why wouldn't we apply the same principles to the sale of all recording media such as VCRs, CD-burners, audio-tapes, computer hard disks, etc...? Why not require all retailers of such goods to first obtain a declaration from the customer that they don't intend to use them for illegal purposes (such as copying copyrighted materials...)? Many retailers sell both albums (copyrighted music) and also hi-fi equipment with either twin cassette decks or even twin CD decks (a player and a burner). Why wouldn't the music industry take them to court? The assumptions behind the Dutch MSat ruling (that a satellite shop sells such items for one purpose only) are surely no less applicable to the Hi-Fi retailers (why else would someone go to a home-entertaintment retailer to buy a hi-fi unit incorporating a CD player and a CD-burner if not in order to copy music CDs...?)

This opens up a real can of worms...

2old
 

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#4
Dear All,

Late as usual.

Given the very nature of the case, I can only imagine that the lawyers acting for and on behave of Canal+ knew how to swing it (money to be lost=very good lawyers). The judge, in turn, seems to have ceded to the Canal+ argument.

Blank cards and programmers are not going to see the end of Canal+; albeit, one could argue that they should have (sic) invested in an encryption technology that was harder to crack; should update codes more often, etc.

In a similar, and already stated way, CD-ROM burners will not see the end of printed and purchased music. Daft, daft. Its like banning fertiliser - because bombs can be made of it ?

One hopes that that person goes for an appeal and that this ruling is overturned - as it should: as 2old said, the law hasn't exactly been consistant in this instance. More homework for judges in Holland, please.

Then again, the Dutch do seem to be a law unto themselves.

Have Fun,

Mark.
 

2old4this

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#5
Say what you want about Jack de Booij, director of M-Sat in Axel, NL... the bloke's got balls!

He's sent the following message to his existing customer database via email (translation at bottom):

"De verkoop van blanco smartcard’s, programmers, blokkers en season interface’s is toegestaan zolang zij niet worden gekocht met de bedoeling daarmee gratis naar Canal plus / Canal Digitaal. te kijken. Echter het is steeds verboden om installaties of voorzieningen te verkopen als het de verkoper duidelijk is dat deze aangeschaft worden met de bedoeling gratis naar betaaltelevisie te kijken. In dat geval is het dus ook niet toegestaan om schotels, TV’s en decoders te verkopen.
In tegenstelling tot de bewering van Canal+ dat er vanaf heden geen blanco smartcards of programmers verkocht zullen worden door M-Sat, zal M-Sat zoals u zult begrijpen blanco smartcards en programmers blijven verkopen, evenals overig toebehoren bij het kijken naar uw (satelliet) TV."

TRANSLATION:

The sale of blank smartcards, programmers, blockers and Season interfaces is permitted as long as they are not sold for the purpose of free-viewing of Canal-Plus/Canal-Digitaal. However, it is still forbidden to sell installations or goods if it is obvious to the seller that they are purchased with the intention of watching pay-tv without paying. In that case, neither is it permitted to sell dishes, TVs or decoders.
Contrary to the claims of Canal+ that from today no blank smartcards or programmers will be sold by M-Sat, you will appreciate that M-Sat shall continue to sell blank cards and programmers, as well as other items for watching your satellite TV"
---------------------------------------------------------------

You can see where he's going with this. When Canal+ issue their next legal proceedings against him on the grounds of his not having abided by the first ruling, he will claim that at no point did he sell goods to any customer who clearly explained they intended to use them for illegal purposes. So his email is effectively a cloaked instruction to cutsomers not tell him why they want the stuff....

So... er, trouble brewing methinks....

2old
 
A

asimov

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#6
Hi

Very interesting reading.

The question is: What legislation was used to reach the decision; was it local (Dutch law) or a European Directive?

The reason for asking is that if it is the latter, then C+ could use it in other EU countries. That would make life very interesting especially with changes in the pipeline(?) concerning (computer) software piracy i.e. £10,000 fines and possible imprisonment.

asimov
 

2old4this

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#7
local Dutch law was invoked (specifically, "Artikel 326c" of the "Wetboek van Strafrecht")

But in May 2000 a EU directive was enacted across the union requiring that at that date each member state would have in place their own similar legislation (for outlawing the circumvention of payments where due to broadcasters/providers).

Up until that date, the bizarre situation had existed in the UK and some other countries that although it was both illegal and unspeakibly immoral to tamper with the good ol' home-grown broadcasts, it was self-evidently just jolly tikaboo to bleed dry those nasty foreign ones. Hence the past proliferation in the UK of commercial hacks for D2MAC, mediaguard (the SNAC card) and scores of others.

In point of fact, the Dutch article 326c was placed on the statute books long before that Eu directive came into force. Trouble is, the Dutch are tought even as embryos to arbitrarily do the opposite of what any authority figure tells them to.
It may be genetic.
Probably the judge in Axel looked at what the judge in den Bosch had already decided in the Xtra-Sat case, and was genetically unable to stop himself ruling completely the opposite.

Er, or something.

2old
 
A

asimov

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#8
Hi 2old4this

Thank you for shedding some more light on the issue.

Now I know why I like visiting Holland (wish I could do so more often but the wife prefers going to the Med).

asimov
 

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#9
Dear Asimov et al

Now I understand fully

Whenever I go to Amsterdam its something like the parallel universe episode from the original Star Trek series.

Go through one door of a cafe, and in ten minutes things are not quite what they were before one went in.

Mind you once in it seems I understand the Dutch language somewhat more fully.

Anyone going to the IBC next month ? We could possible organise a lunchtime meeting if agreement is made on the time and place. This forum seems to have the approval of the broadcasters (not much that is posted that is underhand) and youve not been turned nomad unlike a few others around, so I suppose its safe to post any suggestions on this.
 
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