EchoStar Looks To Nix Antitrust Claims In Piracy Spat

[lonster]

EchoStar Looks To Nix Antitrust Claims In Piracy Spat

By Melissa Lipman

Law360, New York (July 27, 2009) -- EchoStar Technologies Corp. continues to defend its suit accusing set-top box distributor Viewtech Inc. of pirating the satellite provider's signals, arguing that the company's latest antitrust counterclaims rehash the same allegations that a federal judge dismissed as deficient two months ago.

Englewood, Colo.-based EchoStar asked the U.S. District Court for the Southern District of California to drop Viewtech's second amended counterclaims with prejudice on Friday.

Viewtech argues that EchoStar's copyright suit — along with similar suits against Viewtech competitors — is an attempt to scare the company out of the market for free-to-air receivers.

The defendant claims that it does not support piracy, but merely sells boxes — which EchoStar also markets in some countries — designed to allow users legitimate access to the free signals.

EchoStar filed the suit in July 2007, accusing the Oceanside, Calif.-based company of unlawfully making and distributing devices to facilitate the unauthorized reception and decryption of EchoStar’s subscription and pay-per-view TV programming.

The suit alleges five claims, including a violation of the Digital Millennium Copyright Act and California’s unfair competition law.

The district court has since dismissed one claim brought by EchoStar over the Communications Act, but has refused Viewtech’s motion to dismiss the rest of EchoStar’s claims.

Judge Thomas J. Whelan, who is overseeing the proceedings, dismissed the bulk of Viewtech's first amended counterclaims, including three monopoly-related counts, without leave to amend in late May. But he gave Viewtech permission to try again on two Clayton Act claims and a predatory pricing allegation under the Sherman Act.

Now EchoStar argues that the new set of counterclaims "cures none of the defects" the court found for those three claims and has asked Judge Whelan to drop them with prejudice.

The court "already unequivocally rejected" Viewtech's allegations of exclusive dealing and anti-competitive agreements based on EchoStar's alleged threats to the defendant's distributors, according to the motion. But in its latest pleadings, Viewtech only re-alleges that the satellite-TV provider "made vague 'threats' against distributors not to sell Viewtech products 'or else,'" EchoStar argued.

Judge Whelan wrote in May that "at best, the [counterclaims] suggest ... that EchoStar is hostile to distributors who continue to sell Viewtech’s products."

EchoStar claims that Viewtech has failed to deal with "this core defect," and only "persists in basing all its claims upon the same threats" despite agreeing that the distributors continue to sell Viewtech's receivers regardless of the alleged threats to distributors.

The plaintiff further argues that Viewtech has "without explanation" re-plead some of the same causes of action that Judge Whelan dismissed without leave to amend in May. In particular, EchoStar points to Viewtech's cause for "vertical nonprice restraints" in violation of the Sherman Act, which the court dropped "word-for-word" in its previous order.

Viewtech attorney David Robert Clark said Monday that those claims regarding the counts dismissed without leave to amend are "not true."

Clark also said that his client had "added the new allegations to cure the technical deficiencies noted by the court the last time, and we're confident that the second amended counterclaims will stick."

An attorney for EchoStar declined to comment.

EchoStar is represented by DLA Piper US LLP and Hagan Noll & Boyle LLC. Viewtech is represented by the Clark Law Firm APLC and Law Offices of Manuel de la Cerra.

The case is EchoStar Satellite LLC et al. v. Viewtech Inc. et al., case number 3:07-cv-01273, in the U.S. District Court for the Southern District of California.

--Additional reporting by Erin Coe

[bolt555]

thanks for the update
this remindes me of what happend with the p4 cards, we herd romers there was a crack, and directxxxt went after everone, took all the sites that sold anything down
took down,and all the coders, it was sick, and it was all disxxx idea, at the time they were buying out direct and they had this plan to stop all the pirateing, the bid to buy direct fell through, but the plan they were going to use worked, no hack public. the end
oh yea the only way we are going to sniff a hack, is if the people who have it upload it to the net today, before they shut it all down, it has begun, just like before,but slower. coders first, 2nd they will take down the stores and raid the servers and oh yea the letter asking for money not to go to cort, the only way for fta to live is the uploading of the bin.
hope i dident scare ya..............................