The Battles Past and Future Over the last 15 years, the broadcasting industry, in concert with government authorities, have developed the tools needed to win the DTH anti-piracy war. Our legal victories right up to the Supreme Court of Canada have left no doubt that grey and black marketing are illegal. The last stand of the pirates, a Charter of Rights challenge, lays in shreds and the pirates now know it is a battle they cannot win. The anti-piracy advertising campaign has put the message front and centre in the minds of consumers. What’s needed now is a frontal attack on the perpetrators, an aggressive door-to-door campaign targeting those who think they are safe in watching their pirate channels. They think they are safe because they believe they cannot be caught. They believe they are getting away with it. They are about to be found out. From Face-to-Face Transactions to the Internet Veil No sooner had DTH been launched some 20 years ago than criminals went into business circumventing encryption. In those days it was simple to track them. Pirates had to meet face-to-face with their customers, first to make the sale and later to reprogram cards that were de-commissioned by ECMs. This allowed ample opportunity for detection and customers naturally felt vulnerable.  Nowadays the most prolific suppliers of hacking technology use the Internet to avoid detection. Customers purchase cards online by credit card. The credit card transaction processors operate in other countries and direct funds to the pirates’ offshore accounts. Hacked cards may be re-programmed from remote locations via password-protected web sites. As a result, customers are bolder, believing that they are hidden behind the veil of the Internet and so the hacking trade has flourished all the more. And thus we have our target: the customers’ illusion of safety. The Lead of the Recording Industry Consider the recording industry example. Recent lawsuits in the U.S. have proven that individual consumers can no longer hide. A random group of scofflaws who illegally download music have been thrust into the international spotlight. They stand as an example to the rest that their lawbreaking activities may be exposed, and the campaign continues. Confronted with this reality, millions of otherwise law-abiding people are suddenly deciding that the risk is no longer worth it. This is the effect we must aim for. Strategy Evidence of piracy is plainly visible to anyone who cares to look. What pirate consumers cannot hide are the satellite dishes arrayed on their walls or roofs. Where there is a dish there is a satellite TV consumer. Sometimes, piracy is obvious as illegal consumers are betrayed by DirecTV or Dish Network logos, or dishes stripped of their trade-marks. Regardless, a simple crosscheck of the customer records at Star Choice and ExpressVu would validate who is a legitimate subscriber and who is not. (Some of you may worry that valid subscribers may be unfairly accused and a damaging backlash may ensue. Not to worry: there are crosschecking techniques, which will obviate that risk. I won’t discuss those here because the bad guys read CCR too.)  Possessing and using a DTH antenna without a subscription from a lawful distributor means the law is broken. The cure can be effected by resort to ‘rolling’ Federal Court actions, a tool often used in product counterfeiting and sports bar cases. Those actions have produced powerful injunctions and resulted in the collection of hundreds of thousands of dollars in damages. These remedies have proven effective and permanent and will work against pirate DTH customers, especially if Industry Canada pursues amendments to the law to make proof and collection of damages easier.  This type of campaign is easy to unleash and deadly in its effectiveness. We have identified entire streets where virtually every house has an illegal DTH antenna. When a process server starts appearing on doorsteps, when individual customers have to face the glare of publicity, tens of thousands of others will give up the game. It is working for the recording industry. It is time to do it for DTH piracy. The time is now for the next move in the battle. Bill McKenzie is a senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP. Lisa James LLM is an intellectual property lawyer based in Orillia ON.