who owns the card

[charlielover]

this is really stupid and please
delete this thread if this amazingly
wrong, but someone told me NDS owns
the card. doesn't that mean they
have to, or maybe will sue?

[Azuka]

While i do not fully understand that last part of your comment.

NDC Does infact own the card. Part of the use agreement is on the actual card (says something to the effect of 'This card is property of NDC, we reserve the right to take this card...blahblahblah..') (ok so I forgot exactly what it said, I'm at werk and not near my card ;-)

They can and will sue (or atleast threaten) if they think your in possesion of illegal cards or equipment.

[REDx]

unless it was part of you purchase contract or
disclosed to you at time of purchase that the
card is the property of nds.
the card belongs to you. this comes strait from
my attorney. lol its like, say you wrote on the
ignition system of you car. this is the property
of charlielover. then you sold the car to
some else. then called the cops lol. ya they would
arrest him, but boy once he producted the sales slip
for the car. you would get sued or arrested.

[To The Real King!!]

Hi Guys,

Sorry but its not that simple.

It is totally dependant on the property laws in the jurisdiction you live in. Several courts in Canada have ruled that the cards belong to the buyer while other courts have ruled they belong to NDS. It depends on the local property laws and they probably vary State by State. In Quebec, unless you file a motion at the time of the sale stating so, the cards no longer belong to the previous owner one the sale to you is completed. So unless a type of mortgage or hypothec is filed with the court then the ownership of the property transfers to the buyer when a sale is completed.

So if NDS take someone to court claiming ownership then its necessary to bring the property ownership laws into play. Depending on what they say is who is the real owner.

So there is no ONE correct answer, its dependant on the law where you live.http://www.legal-rights.org/images/ttrk.gif
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[REDx]

in the state of ca. usa the card belongs to you.
within the perimeters i stated in my previous post.
lets say you recieved the card in the mail from dtv.
then nds would have a claim on it.

[newideas]

If it is being claimed that illegal reception
comes from decrypting info on the card, and
NDS or the individual owns the card, how
can Dave ask for the card "back"? How can
they sue for decrypting a device they never owned?
They have a contact with NDS to provide security...
shouldn't they sue NDS and NDS sue the individual for
recovery of losses? Just a thought.

[no1b4me]

REDx, I’m not in a position to argue with advice given to you by legal counsel, I'm not a lawyer, however as I understand it the end user only owns the IRD and not card. The DirecTV® customer agreement states that the card is the property of DirecTV®. Here is a quote from the agreement:


(e) Access Card and Receiving Equipment. You have been provided with a conditional access card that is inserted into your receiver unit (referred to as the "Access Card"). The Access Card and the "Receiving Equipment," which includes a receiver unit, a remote control unit, and a receiving antenna dish, are necessary to receive our Service. The Access Card will work only in the Receiving Equipment that it came with. Access Cards are nontransferable and will at all times remain the exclusive property of DIRECTV. If you tell us that the original Access Card was lost, damaged, defective, or stolen, we will replace it, as long as there is no evidence of unauthorized tampering with or modification of the Access Card and your account is in good standing. A replacement fee will apply (described in Section 2). Tampering with or other unauthorized modification of the Access Card is strictly prohibited and may result in criminal or civil action. DIRECTV reserves the right to cancel or replace the Access Card, and the card must be returned to DIRECTV upon request. If you do not return the Access Card to DIRECTV when you cancel your Service, you may be charged a fee as described in Section 2.


The above quote is from a legal and binding contract between the end user and DirecTV®. I can't understand how your lawyer advised you that the card belongs to you.

[newideas]

That's useful, but for people who never signed an agreement
what does it say on the back of the card. (We don't have one).

[ELF-CO]

Originally posted by newideas
That's useful, but for people who never signed an agreement
what does it say on the back of the card. (We don't have one). For the H and HU card, it states the below. I do not have a P4 in front of me at the moment to confirm what it says however.This card is the property of NDS Ltd. and must be returned upon request. Incorporates VideoGuard® security system. Provided for reception of authorized 101° W longitude satellite services. Protected by U.S. patent 4,748,668 and others.

[REDx]

by all means if you signed that agreement
nds has a claim on the card. i have purchased
quite a few ird's in the past and this is the first
time i have seen this.


(e) Access Card and Receiving Equipment. You have been provided with a conditional access card that is inserted into your receiver unit (referred to as the "Access Card"). The Access Card and the "Receiving Equipment," which includes a receiver unit, a remote control unit, and a receiving antenna dish, are necessary to receive our Service. The Access Card will work only in the Receiving Equipment that it came with. Access Cards are nontransferable and will at all times remain the exclusive property of DIRECTV. If you tell us that the original Access Card was lost, damaged, defective, or stolen, we will replace it, as long as there is no evidence of unauthorized tampering with or modification of the Access Card and your account is in good standing. A replacement fee will apply (described in Section 2). Tampering with or other unauthorized modification of the Access Card is strictly prohibited and may result in criminal or civil action. DIRECTV reserves the right to cancel or replace the Access Card, and the card must be returned to DIRECTV upon request. If you do not return the Access Card to DIRECTV when you cancel your Service, you may be charged a fee as described in Section 2.

also please note from my original post.
unless it was part of you purchase contract or
disclosed to you at time of purchase that the
card is the property of nds.

[MR_HOCKEY]

well when i got my dtv system i never signed crap. but this was back when sony b3 receivers were be sold by bestbuy and other places for $500 plus. also when i bought a crap load of systems from wal-mart i never signed crap their. so what you are saying is that if you sign a contract the cards are realy not yours, but if you never signed crap then they realy dont have any say in what you do with them cards.

[no1b4me]

Well let's take a look at a typical purchase argreement. I'm not trying to be an ass. I just don't want anyone to be caught by surprise. Note the bold section.

DIRECTV ANNUAL PROGRAMMING COMMITMENT AGREEMENT DATE:______________________

Thank you for choosing to purchase DIRECTV System equipment. By signing this Annual Programming Commitment Agreement, Customer (hereafter referred to as "I"/"me"/"you"/"your") agrees to abide by the following terms and conditions
� Check here if you are a new residential DIRECTV customer.
� Check here if you are a current residential DIRECTV customer purchasing an additional DIRECTV receiver(s).
Programming Agreement: Within 30 days of purchase of your DIRECTV System equipment, you agree to activate a DIRECTV® TOTAL CHOICE® programming package valued at $31.99 per month or above or DIRECTV PARA TODOS OPCIÓN ESPECIAL® or above or PhoenixTV programming package. The programming package must be maintained for a period of twelve (12) consecutive months (without interruption) for each DIRECTV System purchased by you, including additional DIRECTV receivers ($4.99 per month per additional receiver as long as all receivers are connected to the same phone line). After you have fulfilled your twelve (12) month commitment to the required programming package, you are not obligated to continue your subscription for DIRECTV® programming for any specific duration. Existing DIRECTV customers may activate additional receivers with their existing DIRECTV® programming package.

Consequences of Your Failure to Maintain Programming Agreement: If you fail to maintain and pay for twelve (12) consecutive months of the required programming package, you agree that DIRECTV may charge you a prorated fee of up to one hundred fifty U.S. dollars ($150.00), as liquidated damages, per DIRECTV System that is not activated. If you fail to maintain and pay to twelve (12) consecutive months of required programming package, you agree that DIRECTV may charge you a prorated fee of up to one hundred fifty U.S. dollars ($150.00).

THIS PROGRAMMING COMMITMENT IS SEPARATE AND DIFFERENT FROM ANY OTHER ANNUAL COMMITMENT YOU MAY HAVE PREVIOUSLY MADE WITH DIRECTV AND IS FULLY ENFORCEABLE UNDER THESE TERMS.


DIRECTV Customer Agreement: You hereby agree and acknowledge that this DIRECTV Annual Programming Commitment Agreement sets forth additional terms and conditions regarding your receipt of DIRECTV® programming and activation of access cards and shall be applied in conjunction with the DIRECTV Customer Agreement, a copy of which is provided at DIRECTV.com and with your first bill.

Arbitration: You and DIRECTV agree that both parties will resolve any dispute arising under this Agreement through binding arbitration as set forth in the DIRECTV Customer Agreement.

Customers in NRTC Territory: This Agreement does not apply to customers who activate DIRECTV System equipment in a territory served by members or affiliates of the National Rural Telecommunications Cooperative.

[REDx]

like i said if you signed a agreement.
then yes nds has a claim to the
card.
for instance the 4 subbed recievers i
have. i would guess based upon the info
posted by no1b4me nds would have
a claim to.
all the cards i got out of the dual systems i
purchased from wal-mart,kmart and radio shack
and paid cash for they have no claim.

[oldschoolwizard2000]

exactly, if you sign an agreement then the card belongs to them, however on any ird/card purchase were you didn't sign, then you own the card.

but NDS will say they own because of the "disclaimer" on the back, so then its a legal battle

[no1b4me]

The card NEVER belongs to the end user under all circumstance. The manufacture of the receiving equipment sold to the end user receives the card free of charge from DirecTV®. The purchase price of the receiving equipment does not include the price of the card. The card is only provided because the equipment needs it in order to receive service from DirecTV®. The card is essentially loaned to the end user to be used legally to receive DTV service. The terms of use of an access card are similar to those of a credit card. The bank owns the card even though you may be authorized to use it. Ask any authorized dealer of DirecTV service to show you their agreement with DTV and you will see they are contractually obligated to collect personal info and provide the buyer with a purchase agreement. If the equipment was not sold or purchased under the terms and condition set by DirecTV® that does not necessarily nullify the condition under which DTV distributes their access cards. (BTW I saw one of these dealer agreements at ratshack in early 2001)

Ever asked yourself why some sellers of DTV access cards on fleabay include an IRD in the sale? It is because they can not sell you something they don’t legally own; the access card. (They want to try and comply with the law as much as possible.) In reality they are selling you the IRD not the access card. This is the last thing I will say on the subject.

Regards,

[Azuka]

Ever asked yourself why some sellers of DTV access cards on fleabay include an IRD in the sale? It is because they can not sell you something they don’t legally own; the access card. (They want to try and comply with the law as much as possible.) In reality they are selling you the IRD not the access card.

Which is the whole reason why ebay kills the card only sales.

DirecTV Will inform ebay that the card only sales are infact illegal (expecially P4s) thru their DirecTV_VeRO account. (read ebay's user policies then check DirecTV's VeRO User page on Ebay (http://members.ebay.com/aboutme/directv_vero/)

Specifically this:


Sales of any access cards by current or former DIRECTV subscribers also violate the DIRECTV Customer Agreement, which indicates that these cards are non-transferable

AND

If I have received the new P4 card may I sell it on eBay?

The new license agreement specifically prohibits the sale of all P4 cards, and provides DIRECTV with the consent of the user to have auctions of such devices cancelled


From what I can tell, the HU cards prolly had a loophole that actually allowed certain rights to sell the HU Cards. However I very well could be mistaken, and they just wanted to add the p4 info there.

I'm sure the legality of their agreement can be contested in court, but so can everything else, and that doesn't mean you'd win. No matter, whatever you do with it, be sure your aware of the possiable legalities, weather you agree with them or not. I personally think a lot of laws need to be changed *cough* DMCA *cough*.

I'll leave it at that ;-)

[REDx]

in ca. if you didnt sign a agreement or
were not notified at time of sale. the
card belongs to you.
lol the statement that is why on ebay
you must sell a system along with the
card to be legal. contradicts your arguement
that the ownership of the card is non
transferable.
dtv just has to say thats ours dont let
them sell it. ebay pulls the action.that
doesnt make it right. just like dtv sending
you a letter saying hey pay us 5,500 dollars
or we will sue ya.

[JD490]

I asked my attorney about this he said they would have to produce a contract that you purchased the equipment in order to claim the card is theirs. He said that would be the case in all 50 states. Just because they write that on there cards does not change the Federal, state, or local statutes. The only 2 things that could make the card theirs would be a law written that says they own it you are just borrowing it, or you sign a contract. It’s like a software license if you purchase software and click I agree to there license you are in effect binding yourself to their contract. This does not happen when you purchase a DTV box and Card at your local flee market, or at a garage sale. The burden will be on them to prove you signed a contract. The software makes you agree each time you install it, so as long as you use the software the company that wrote it can say you agreed because you installed it. DTV has no way of you agreeing to anything. I have heard of cards being taken from the mail at the border and sent back to Dave by US customs. Then they send a letter to the receiver saying they sent it back to Dave because it had that property of DTV. The only reason no one ever sued over that is because they cards were most likely hacked.

[Azuka]

It gets into a whole 'nother thing with the click-wrap licenese.

Say use of the card means your bound by the terms. Just like use of the software.

a prime example would be pre-installed software on laptops (excluding windows). You are bound by the terms of say, ez cd creator, even tho you didn't actually click the I accept.

Even with programs that remove the EULA. Even tho you removed it, before install, or changed what it said, doesn't mean you don't have to abide by the original EULA.

Another example would be playstation games or gameboy carts. You don't actually sign something that says you cannot copy/modify/etc.. however that doesn't mean its legal if you do (except under fair use rights, which btw we are loosing due to DMCA among other laws)

Its not specifially the card itself, its the software and the asic on the card. I'm sure if you removed thoes, then DTV wouldn't care what you did with the card.

Remember, its the software & non compliant ISO-7816 stuff thats on the card thats intellectual property of NDC. Not the actual standard of the card itself. (otherwise they'd be suing IBM/MasterCard and anyone else who made ISO-7816 complaint cards)

(yea yea so I can't spell.. I know, I know..)

[newideas]

OK, you buy a programmer, never signed a Dave
agreement, get sued for $5200 by one company
for hacking a card that belonged to another
company, meanwhile the suers are asking for
the card. Was it ever their legal right to
ask for the card? Was it ever their legal
right to sue you for supposedly hacking
something that was never theirs?

[Azuka]

OK, you buy a programmer, never signed a Dave
agreement, get sued for $5200 by one company
for hacking a card that belonged to another
company, meanwhile the suers are asking for
the card. Was it ever their legal right to
ask for the card? Was it ever their legal
right to sue you for supposedly hacking
something that was never theirs?

This is where it gets interesting. If company A (echostar for exmample) gives company B (directv) permission to go after people, can they really do it?

Tho I'm not a lawyer, I don't think so, unless either company B is a lawyer (which we all know they are not) or company B has power of attenory (SP?) which I seriously doubt. I think echostar likes dave going after people, it saves them tones of money. And in the mean time, people are settling without even asking that very question.

IANAL, but personally I'd say no. Dave has no legal right to request a card back that is not theirs, does not have their software, and in no way, is now, or was ever attached to them.

Unfortuanlly I've never worked with dishnet cards tho, so I don't know if their software was developed by NDC or incorporates videoguard tech. If it infact does, then Dave would actually have a valid claim on the card.

[ELF-CO]

OK, you buy a programmer, never signed a Dave agreement, get sued for $5200 by one company for hacking a card that belonged to another company, meanwhile the suers are asking for the card. Was it ever their legal right to ask for the card?Assuming your reference is regarding DTV requesting the return of the card, even though the card is property of NDS… than you should know that it doesn’t work that way for obvious reasons. Although they didn’t physically make the specific card at hand, they are the licensed legal content owners to the technology behind it. (The previous contract between NDS & DTV settles that issue, regardless of what contract you did or did not sign yourself) Therefore, they are legally entitled to ask for the card back when they see fit to do so. In fact, NDS could also request for the card back, but they typically defer it to DTV instead.

It does not mean that they will get their wish… as has been stated by TTRK… it solely depends on where you are, and the laws within your area. If you did not sign any contract with a service provider, the plot thickens further still… but doesn’t mean they will not get their way. The lack of a signed contract does not necessarily mean they do not have a legitimate claim to the property. Jurisdictional law would rule on this issue. Was it ever their legal right to sue you for supposedly hacking something that was never theirs?Asked and answered. They are the “LEGAL” and “LICENSED” content owner. If makes no difference that they did not physically manufacture the card, or any other of the equipment for that matter. They are entitled to seek remedy under the law, simple as that. If I were to give an example… if Microsoft purchased their blank cd’s from a third party manufacturer in Taiwan… do they not still have the legal right to sue you if you copy their cd’s contents without consent from them?

[REDx]

ELF-CO that was a friggin great answer.

[Azuka]

Bleh, my braindead self thought he ment DTV asking for Charlie cards back. (since they are going after people who buy charlie hacking equipment)

btw Bravo ELF-CO, that was a great answer ;-)

[Jeet]

Originally posted by no1b4me
Well let's take a look at a typical purchase argreement. I'm not trying to be an ass. I just don't want anyone to be caught by surprise. Note the bold section.

Folks, Directv only started doing these contracts sometime around the middle of 2001. Circuit City started doing these contracts sometime in 2000 and was the only merchant that did them at that time. Walmart and Kmart never did these contracts because they refused to so then Directv started shipping them systems without cards.

So unless you signed this contract at time of purchase or were made aware at the time of sale that you are being transfered title to all the goods in this box (including the foam and packing materials) except for the access card, then Directv can not claim ownership of the card. The reason for the contracts now is twofold: 1) To discourage people from buying systems and not activating them; 2) To strength their claim to ownership of the cards.

Bottom line is as follows:

Case 1: If you signed this agreement at the time of purchase. The card does not belong to you, it belongs to Directv. If you have a problem with this, then you should not have signed the contract at time of purchase. To get yourself out of this situation, your arguements most go to address the issue of the contract, not property right. That is I did not read the contract when I signed, I did not understand the contract when I signed, etc..

Case 2: If you never signed this agreement. Then more than likely a court would find that ownership of the card transfered to you when you purchased it. If a court finds otherwise, then you would have a really good case against the merchant who sold you the system for selling you clear title to goods when in fact the merchant himself did not have clear title to those goods.

Ebay pulls sales of cards because Directv tells them. The reason they can keep on doing this is because no one who has had an auction pulled has bothered to challenge Directv claim to ownership of the cards in court. Ebay does not care who owns the cards, all they care is that Directv has signed an affidivate stating that they do own the card that is being auctioned obsolving them of any claims for pulling the auction.

[REDx]

JEET another outstanding answer.

[Ihatedtv]

Jeet is correct, but I would like to add that if you bought your system from a merchant, DTV has absolutly NO right to the card or any other part of the system. I remembered my Business Law courses when I read this and pulled out my book.
According the the UCC Art. 2 a buyer can not get a better title to goods than the seller has unless; 1) a person who has a voidable title to goods can pass good title to a bona fide purchaser for value 2) a person who buys goods in the regular course of a retailer's business usually takes free of any interest in the goods the retailer has given to others, and the killer for DTV claim 3) a person who buys goods in the ordinary course of a dealer's business takes free of any claim of a person who entrusted those goods to the dealer. This means that even if you signed a contract for service, unless that contract included a statement that you agreed that DTV retained ownership you still own the card.
The UCC has been adopted by every state and is accepted by the Federal courts so if you bought from a dealer they can't touch it.

[Jeet]

Originally posted by Ihatedtv
...unless that contract included a statement that you agreed that DTV retained ownership you still own the card.

That is correct and that is why you will find in the contracts Directv states that the card must be returned to them. Read the whole contract, they also make you agree that you will not auction this card on a web site, tamper with it, export, basically anything under the sun is covered, just like anyone should do in a good contract.

[JD490]

Hacked cards will fall under DMCA and other laws which make them illegal to posses. I think the contract now says DirecTV will charge the person some amount of money $200 or something if they don't return the card. I know a friend that disconnected his service and they told him he had to send the card back in. They even told him if he unplugged the phone line they would charge him. Its in his contract I read it. One reason I now have digital cable no crazy contracts like that.

[ELF-CO]

JD490 is correct. (Although the DMHC does not deal directly with the mediums issue, since existing laws already cover this issue)
The type of storage medium is completely irrelevant to whether a copyright infringement occurred. As new storage devices are invented, they too, are covered (by existing law) for the illegal copying thereof. (This applies to both the circumvention of any protections, or just copying of contents within)

A smart card in basic terms is nothing more than a storage device. The same laws covering floppy disks, hard disks, cd-roms, tape and even records, etc., are applicable to smart cards too.

Frankly, this whole debate as to whom actually owns the card is a waste of time anyway.
The only time I can foresee where it will ever come into play would be if:
a) your card was seized at the border (and you attempt to have it returned to you)
b) you are in court on a related subject (naughty naughty)
c) you are a subscriber and they request it back

So why worry about it?

[gunsmoke2]

There is a huge difference between P3 and P4. DTV introduced a major difference with P4 cards which just about covers everything. I am going by memory so I don't remember what it said. However I bought a P4 by itself. By itself not sure who is the rightful owner of the property. If I sub then I believe DTV would be the owner.


However P3 cards on the underhand with the little NDS comment has viable aguements why the owner ( who has possession ) is the rightful property owner and not NDS.


NDS cards reposess by ExpressVu in Canada don't go back to NDS as they end up on the street. Same as Dish for that matter.


DTV sales ( has ) P3 cards to DTV dealers with no intructions. RCA does the same. Pegasus and Sony have done the same and so on. There is no strings attached. It goes back to the little writing on the card. NDS has an arguement and so do you. If money was not an issue I would be very comfortable going to court if need be.


The Canadian Government has sold NDS cards. The RCMP either have cards or will be destroyed if it becomes a final decision in court.


The only time NDS fights when it has to do with a raid seizure of piracy.


GS2