'The Guys are [sic] Card Sharing want to share their knowledge with you:
If you want to make up to 40,000 a Year, Contact Us.
You will Need:
A current Card you wish to share.
A computer with ADSL Connection.
We will help you to set it all up from top to bottom, and guess what the software is FREE!!
If you have the above and wish to make some $$.'
49 When Ms Savage opened the link on the home page entitled 'LATEST NEWS', she was directed to a webpage. The webpage contained updates regarding 'the server', which appeared to have been added to the website between 21 April 2004 and 7 May 2004.
50 Mr Nigel Carson deposed that he had examined the communications logs produced by two internet service providers used by Mr Kolker at his home, during the period 23 March to 29 June 2004. An examination of these logs revealed that there was extensive communication between the IP address allocated to Mr Kolker by each of the internet service providers, and the card sharing server which was found at Mr Kelly's premises.
51 On 9 June 2004, the applicants, acting through their solicitors and agents, executed the ex parte search orders, known as 'Anton Piller orders', obtained from Wilcox J, at various premises in the Perth metropolitan area.
52 Ms Murray, a solicitor acting for Foxtel, was one of a number of persons who executed an ex parte search order at the premises of the Mod Shop, Belmont at 132 Epsom Avenue. Ms Murray deposed that she was present at the Mod Shop premises, at Belmont. At about 5.30 pm, she said she observed a person working at the premises, who gave his name as Neville Birjandi, tell Mr Anthony Willinge, the independent solicitor, that his boss was 'Phil'. Mr Willinge asked Mr Birjandi to telephone his boss. At 5.30 pm, Mr Birjandi, in response to that request, made a call. At approximately 5.34 pm, Mr Birjandi received a telephone call on his mobile telephone. Mr Birjandi said to the caller words to the effect:
'It's best if you come down…I am limited to what I can say.'
53 After that telephone call Mr Willinge and Mr Birjandi had a conversation to the following effect:
'Mr Willinge: Who telephoned you?
Mr Birjandi: That was my other boss, the second in charge, Yuri.'
54 At approximately 6.02 pm, Mr Kolker and Mr Haddad arrived in a car at the premises and entered the premises.
55 At approximately 6.07 pm, Mr Haddad made a telephone call using his mobile telephone. Ms Murray said that she did not know who Mr Haddad was calling. Mr Haddad moved outside the door of the premises while speaking on this telephone call. Ms Murray and Mr Willinge followed him. Ms Murray heard Mr Haddad say to the person to whom he was speaking on the telephone, words to the following effect:
'Pull the cards mate…I said pull the cards just do it now…both.'
56 Mr Willinge said to Mr Haddad words to the effect:
'You must get off the phone.'
57 And Mr Haddad then ended the telephone call.
58 Mr Kolker was standing beside Mr Haddad throughout this telephone call. A few minutes after Mr Haddad had ended the call, Mr Haddad received a telephone call on his mobile telephone in Ms Murray's presence. Mr Haddad said words to the person to the effect:
'Pull them…just do it mate.'
59 Mr Haddad then continued the conversation and said:
'Don't make any outgoing calls from that phone as all the calls are likely to be recorded.'
60 Ms Grinston, a solicitor acting for the applicants, was part of another team of persons who executed an ex parte search order on 9 June 2004. Ms Grinston deposed that she and the other members of the team arrived at 32 Gladstone Road, Leeming, at approximately 2 pm on 9 June 2004. Ms Grinston knocked on the door and rang the doorbell but no one answered. There were no vehicles parked in the car park at the Gladstone Road address and there appeared to be no‑one at home.
61 Ms Grinston and the other members of the team waited in their vehicle in a street in close proximity to the Gladstone Road address until shortly before 6.30 pm. Throughout the time that they waited they did not observe any vehicle enter the carport at the Gladstone Road address and did not observe any people entering the residence there. Shortly before 6.30 pm, Ms Grinston received a telephone call from Mr Michael Williams, who was monitoring the execution of the Anton Piller orders on behalf of the applicants. Mr Williams described the conduct of Mr Haddad which is referred to in [55]‑[59] above, which had been reported to him.
62 Ms Grinston said that within five to 10 minutes after receiving the telephone call from Mr Williams, a white van approached the Gladstone Road address and entered the carport. Ms Grinston and Ms Ivey, the independent solicitor, approached the front door of the Gladstone Road address, knocked on the front door and rang the doorbell. After a few minutes, the door was opened by a person who identified himself as 'Keenan Kelly'. Mr Kelly said that he worked at the Mod Shop in Palmyra. Ms Grinston said that she estimated that Mr Kelly was inside the house at the Gladstone Road address for approximately four to five minutes after he entered the residence and before he opened the front‑door.
63 Ms Grinston, Ms Ivey, Mr Mulready, Mr Gardiner, and Mr Streefkerk entered the house. Each of Mr Gardiner and Mr Streefkerk was at that time employed by Ferrier Hodgson and acted in the capacity of a forensic computer expert. Ms Grinston said that two computers were found in a bedroom in the house. One computer was located on the top shelf of a wardrobe, the other computer was on a desk. There was also in the wardrobe a piece of equipment which Mr Gardiner identified as an ADSL router. Mr Gardiner identified one of the computers found in the bedroom as a card sharing server. Mr Gardiner said that two cables were attached to the computer. There would, he said, have been attached to each cable, a device used for reading an authentic Foxtel smartcard. Mr Gardiner referred to this device as a 'Phoenix card reading device'. Two Phoenix card reading devices were found in the house in a room adjacent to the room in which the computers were located. There were no Foxtel smartcards in the two Phoenix devices.
64 Ms Grinston said that neither she nor any other member of the team, found any Foxtel smartcards at that address.
65 During the course of the execution of the ex parte search orders a number of documents were removed from the premises of the Belmont store. These documents included a document bearing the Mod Shop logo which is headed:
'Minutes from Meeting
Meeting Date: 30/03/04
Today's Date: 31/03/04
Author: Keenan
Not Present: Gethen.'
66 The following is recorded in the document:
'…
· Free XTV -Always check the ID. You can say "Hardcore" but you can't say "XXX". Inform the customer that they are not to view the channels in a public place.
· Meeting Attendance - All staff are to attend the meetings. No slackers, no lame excuses.
…
· Card Sharing -
By now everyone should know that there is an alternative to the red card issue. It involves one decoder set up and running a legit card with full access. This decoder is connected to a pc set up as a server. Other people/systems (clients) can then connect their decoder via internet to the Server PC.
There is server & client software available for customers who want to try and set the network up themselves. Tell customers to email card‑sharing@hushmail.com for software. They can call our tech support line for help. The software we use is far superior to anything else. The server version of the software we use will not be publicly available.
There are diagrams which you all will have to put up in your stores and also have the handouts which have been copied off our internet site.
…
· Card Sharing Computers - There will be installers that ARE NOT affiliated with The Mod Shop. They will also be able to install software onto a clients computer free of charge, if they purchase the computer from us with an internal modem for an extra $50.
…'
67 A second document found states:
'Minutes from Meeting
Meeting Date: 13/04/04
Document Date: 15/04/04
Author: Gethen
…
· Is Card Sharing legal? - If you are asked this question, it is best to say that you're not sure. They should check with someone like Mike.
…
· Server Interface - The stores now have card sharing Server interfaces in stock at $150. These are for people who wish to set up their own sharing network. Software is still required and versions are available from www.card‑sharing.com
· Sharing Help - Customers who need help with card sharing or setting up a network can call our technical support number.
…
· Stock Take - A stock take needs to be done at all the stores. Yuri is deciding whether or not this is to be done by Store staff or someone from w.house.
…'
68 Among the other documents removed from the premises of the Mod Shop, Belmont store, were promotional documents describing 'card sharing packages' which were available for sale from the Mod Shops. There were also advertising pamphlets, advertising the components for computer systems, and describing those systems as 'ideal for card sharing, finance available'.
69 In addition, there were several invoices evidencing the sale by the first respondent in its former name, Soixante Pty Ltd, to the Mod Shop, Belmont of card sharing equipment, being both client serial interface cards, and card sharing server interface cards. There were also stock requisition forms completed by members of staff from the Mod Shops for card sharing equipment. The stock required was primarily, the client serial interface cards. However, there were also requests for the card sharing server interface cards.
70 Further, Ms Grinston deposed that on 11 June 2004, she caused a page from the website 'www.themodshop.com' to be printed out. The print out of the webpage shows that the following words appear:
'PLEASE NOTE: WE NO LONGER SELL CARD SHARING HARDWARE WHATSOEVER OR DREAMBOX DECODERS.
PLEASE DO NOT ASK US TO SUPPLY THESE PRODUCTS AS WE ARE UNABLE TO.'
71 Mr Stephen George Joyce is an engineer employed by the first applicant. Mr Joyce is familiar with the operation of smartcards and what he referred to as 'smartcard piracy', being the unauthorised accessing of satellite delivered subscription television broadcasting services. Mr Joyce deposed that he had examined the Phoenix server interface device which had been found at the premises of Mr Kelly. Mr Joyce said the server interface device is used in conjunction with a Foxtel smartcard which is partially inserted into one end of the server interface device. The device is then connected to a power source and to the COM port of a personal computer on which server card sharing software is installed and which is connected to the internet. This enables the personal computer partially to emulate the operation of a set top box, so that the smartcard inserted in the device can process 'control word decryption request' messages, originating from one or more remotely located set top boxes. Decrypted control words are then delivered by the server interface device to the personal computer to which it is connected, and which then distributes the decrypted control words over the internet to the remotely located set top boxes which originated the requests. This process enables those remote set top boxes to operate as if they had a valid Foxtel smartcard installed in them.
72 The server interface device found at Mr Kelly's house was in Mr Joyce's view, given its quality, a device which had been made as a part of a 'sheet of such devices which can be individually snapped apart'. He also noted that there is a 'TMS' branding on the board forming part of the server interface device. He said that the server interface device was similar to other smartcard readers that are available in kit form from some electronics hobby shops and other retail outlets.
73 Mr Joyce also examined the client serial interface devices which were sold by the Mod Shop companies. He said that the client serial interface device was a device which, to the best of his knowledge, was 'not in common commercial use or commonly commercially supplied'. He said that it had been professionally manufactured. Further, the evidence showed that a 'Dreambox' was a device which was, in effect, a blend of a personal computer and set top box decoder and was an item of satellite reception equipment, sold by the Mod Shop companies.
74 In his affidavit, Mr Robert Nicholls referred to two Mod Shop advertisements in terms similar to those advertisements referred to in [25] and [27] above. He said he understood the references to satellite dishes, in those advertisements, to be references to satellite dishes of 65 cm diameter. He deposed that a 65 cm diameter satellite dish is the most common size of satellite dish in domestic use in Australia. Mr Nicholls said:
'To the best of my knowledge and belief, virtually all of the pay television provider supplied satellite dishes for use in Australia are 65 cm in diameter. All of these dishes would be pointed at the Optus/Foxtel/Auststar satellite at a longitude of 156şE…Where the satellite television service is encrypted, the viewer will require a conditional access device (typically a smartcard issued by the provider of the service) to decrypt and view the service.
Some services, sometimes referred to as "free channels", do not limit access by means of a conditional access system. In this case, a suitable satellite receiver without a conditional access device can decode the service for display on a television.'
75 In his evidence, Mr Nicholls assessed which satellites could potentially deliver television services to 65 cm satellite dishes located in Australia. Mr Nicholls concluded that there were fewer than 30 free channels that are available in Australia using a 65 cm dish and that a maximum of nine are available from any one satellite.
76 Mr Nicholls also distinguished between satellites which are in 'geosynchronous orbit', such as the Foxtel satellite, and those which are in an 'inclined orbit'. He said:
'In order to receive services from a satellite in inclined orbit, a very large, complex specialised antenna system is required. Such a system requires a dish of approximately 3.3 metres in diameter and is, in my experience, not used for domestic purposes.'
77 Evidence was also given by Mr Vittorio Lalli‑Cafini, a former employee of one of the Mod Shop companies, as part of the applicants' case. This evidence was strongly contested by Mr Kolker. Mr Lalli‑Cafini was cross‑examined. Counsel for Mr Kolker also cross‑examined Mr Carson, Mr Mulready and Ms Grinston. I will deal with Mr Lalli‑Cafini's evidence and the other contested evidence below.
The copyright claim
78 Foxtel Cable contended that s 135AN and s 135ANA of the Act conferred upon it a right to bring actions for damages in respect of the impugned business activities of the Mod Shop companies.
Section 135AN
79 I will deal firstly with the claim made under s 135AN. At the relevant time, s 135AN provided as follows:
'Actions in relation to the manufacture of and dealing with broadcast decoding devices
(1) Subject to subsection (2), this section applies if:
(a) a broadcaster makes an encoded broadcast; and
(b) a person does any of the following acts without the permission of the broadcaster:
(i) makes a broadcast decoding device;
(ii) sells, lets for hire, or by way of trade offers or exposes for sale or hire, a broadcast decoding device;
(iii) distributes a broadcast decoding device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster;
(iv) exhibits a broadcast decoding device in public by way of trade;
(v) imports a broadcast decoding device into Australia for the purpose of:
(A) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the device; or
(B) distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster; or
(C) exhibiting the device in public by way of trade;
(vi) makes a broadcast decoding device available online to an extent that will affect prejudicially the broadcaster; and
(c) the person knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(2) This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
(3) Subject to subsection (8), if this section applies, the broadcaster may bring an action against the person.
(4) The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.
(5) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to:
(a) the flagrancy with which the defendant did any of the acts described in paragraph (1)(b); and
(b) any benefit shown to have accrued to the defendant as a result of making or dealing with the relevant broadcast decoding device; and
(c) all other relevant matters;
the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.
(6) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order.
(7) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the broadcast decoding device would be used for the purpose referred to in paragraph (1)(c) unless the defendant proves otherwise.
(8) An action cannot be brought against a person under this section in respect of any act described in paragraph (1)(b) after the expiration of 6 years from the time when the person did the act.'
80 The applicants pleaded two separate claims against the Mod Shop companies in respect of s 135AN. The first claim related to the activities of the Mod Shop companies in relation to, what they referred to as 'smartcard piracy' - being the Mod Shop companies' involvement in the supply to customers of pirated smartcards. The second claim related to the card sharing activities of the Mod Shop companies.
81 The applicants pleaded at para 19 of the statement of claim, that the Mod Shop companies supplied satellite dishes, set top boxes, cabling and blank unprogrammed smartcards. It was then pleaded that, at all material times, and at least during the period mid 2002 to February 2004, the Mod Shop companies supplied to customers, the names and contact telephone numbers of a third person or persons, who would be able to, and who did, supply the customers with unauthorised smartcards that would enable the decryption and display of Foxtel broadcasts. It was further pleaded that each unauthorised smartcard, or alternatively, the software on each unauthorised smartcard, had been modified without the authority of Foxtel Cable, to replicate the electronic information on an authentic Foxtel smartcard, and was thereby adapted to enable its use to decrypt and display Foxtel broadcasts. The applicants pleaded that by reason of these matters, the satellite reception equipment was 'designed', or 'adapted', to enable the Mod Shop customers to gain unauthorised access to, and to decrypt, Foxtel broadcasts. Also, it was pleaded that by the insertion of the unauthorised programmed smartcard into the set top box, the set top box and/or the other satellite reception equipment, was thereby adapted to enable the Mod Shop companies' customers to gain access to and decrypt the Foxtel broadcasts.
82 The applicants then allege that, by reason of the matters referred to in [81] above, the Mod Shop companies sold, and/or by way of trade offered for sale, and/or distributed for the purposes of trade and/or for a purpose which prejudicially affects the second applicant, 'broadcast decoding devices' within the meaning of s 135AN of the Act.
83 At trial the applicants applied for leave to amend the statement of claim to introduce a further, or alternative plea, that the Mod Shop customers and/or the third person suppliers of the smartcards (whom the applicants called the 'unauthorised Smartcard delivery agents') had 'made' broadcast decoding devices within the meaning of s 135AN of the Act. Mr Kolker did not object to the proposed amendment and, after giving Mr Haddad an opportunity to make submissions against the proposed amendment, I granted leave for the amendment to be made.
84 It was also pleaded that the Mod Shop companies, Mr Haddad, Mr Kolker and Mr Kelly, those involved in the management of the Mod Shop companies, the third person suppliers of smartcard and/or customers of the Mod Shop knew, or ought to have reasonably known, that the 'broadcast decoding devices' would be used to enable persons (being the Mod Shop companies' customers) to gain access to Foxtel broadcasts without the authority of the broadcaster.
85 Further, the applicants pleaded, relevantly for these purposes, that the Mod Shop companies and Mr Haddad and Mr Kolker individually, aided and abetted, counselled, induced, procured, acted in concert with, or was otherwise a party to the acts of the Mod Shop companies, and/or the third person suppliers of smartcards, and the customers referred to in [81] and [82] above.
86 I will consider each of the requirements of the Act.
Is Foxtel Cable a 'broadcaster' which makes an 'encoded broadcast'?
87 The first question is whether the second applicant, Foxtel Cable, was a 'broadcaster' that made an 'encoded broadcast' within the meaning of s 135AN(1)(a) and, also, s 135ANA(1)(a) of the Act.
88 This question arose for decision because, although Mr Haddad did not participate in the trial, by a notice of motion which was adjourned to the trial, Mr Haddad sought to have the entire amended statement of claim struck out on the basis that Foxtel Cable was not the maker of 'an encoded broadcast'.
89 The applicants accepted that Foxtel Cable did not deliver an 'encoded broadcast', as described by the definition in s 135AL(b) of the Act, but contended that they did deliver an 'encoded broadcast' within the meaning of the definition in s 135AL(a) of the Act. That subsection defines an 'encoded broadcast' as:
'encoded broadcast means:
(a) a broadcast that is made available only to persons who have the prior authorisation of the broadcaster and only on payment by such persons of subscription fees (whether periodically or otherwise); or
(b) a broadcast (other than a radio broadcast or a broadcast to which paragraph (a) applies) delivered by a broadcasting service that is a commercial or national broadcasting service within the meaning of the Broadcasting Services Act 1992;
being a broadcast, access to which in an intelligible form is protected by a technical measure or arrangement (including a computer program).'
90 Mr Haddad contended that the broadcast delivered by Foxtel Cable did not fall within the definition in s 135AL(a), because Foxtel employees and Foxtel contractors receive the Foxtel encrypted broadcast with the authorisation of Foxtel, but without paying subscription fees. Therefore, submitted Mr Haddad, it could not be said that the Foxtel broadcast was made available 'only' to authorised persons and 'only' on the payment of fees by those persons. Mr Haddad relied upon the evidence of Mr Randell Casserly in support of his claim that some Foxtel employees and contractors received free Foxtel broadcasts.
91 The applicants in turn relied upon the evidence of Mr Peter Tonagh, the Chief Financial Officer of Foxtel. In his evidence, Mr Tonagh said that Foxtel did give free access to certain Foxtel channels to certain of its employees who were eligible, for example, by having completed a certain period of service. Mr Tonagh also said that a small number of individuals who had a corporate or commercial connection to Foxtel's business, or who may be regarded as opinion leaders, were given unpaid access to those channels. The latter group of persons are referred to as 'complimentary account holders'. Mr Tonagh also explained that each of the group of persons who received free access would have to pay for access to certain channels forming part of the Foxtel service such as 'Foxtel Box Office', the 'Main Event' and foreign language channels.
92 The definition of 'encoded broadcast' uses the term 'broadcast' which is defined in s 10 of the Act to mean:
'…a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.'
93 In my view, the definition of 'broadcast' in s 10 of the Act, informs the construction of 'encoded broadcast', in s 135AL of the Act. This definition assumes by the use of the term 'broadcast' that it is a broadcast that will be made to the public. The reference, therefore, to the broadcast being made available to 'only to persons who have the prior authorisation of the broadcaster and only on the payment by such persons of subscription fees' is to be construed as being a broadcast in respect of which access is restricted to qualifying members of the public. In other words, for the 'broadcast' to be characterised as an 'encoded broadcast', the broadcaster must limit availability to those members of the public who comply with the two conditions, namely, the prior authorisation and the payment of subscription fees. If the broadcaster imposes each of those conditions as the means of making the broadcast available to any member of the public who seeks access to the broadcast, then the broadcast is an 'encoded broadcast'. Foxtel Cable fulfils this requirement.
94 The contention advanced by Mr Haddad does not distinguish between the arrangements which Foxtel makes with members of the general public ‑ to which the definition is directed; and its arrangements with persons who may be described as 'insiders' and who are not members of the general public ‑ to whom the definition is not directed.
What is a broadcast decoding device?
95 The next issue is to determine the meaning of a 'broadcast decoding device'. The concept of a 'broadcast decoding device' is central to each of the claims based upon actionable conduct referred to in s 135AN and s 135ANA of the Act.
96 A 'broadcast decoding device' is defined in s 135AL of the Act in the following terms:
'broadcast decoding device means a device (including a computer program) that is designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster by circumventing, or facilitating the circumvention of, the technical means or arrangements that protect access in an intelligible form to the broadcast.
broadcaster means a person who makes an encoded broadcast.'
97 The applicants submit that each of a satellite dish, a set top box, cabling and an unauthorised programmed smartcard, or any combination of one or more of those items, comprised a 'broadcast decoding device' in terms of s 135AL of the Act.
98 Mr Kolker, on the hand, submits that it is only the unauthorised programmed smartcard that can be regarded as a 'broadcast decoding device' within the meaning of the Act. This is because none of the other items, whether individually or in combination, would succeed in decrypting Foxtel broadcasts.
99 It was common cause, that each of the items of satellite television reception equipment, referred to, other than the unauthorised programmed smartcards, are available for sale to members of the public from a number of retailers.
100 In the case of Sky Channel Pty Ltd v Yahmoc Pty Ltd (2003) 58 IPR 63, Allsop J distinguished between ordinary items of satellite reception equipment, which are commonly sold by retailers of television equipment, such as satellite dishes, set top boxes and cabling, and smartcards. He said at 64, at [3]:
'The apparent breaches involved the use of what might be termed, in common parlance, a smart card, in a decoding device, which is a set top box. All the equipment for the reception of wireless broadcasts from the applicants, that is, dish, cables, television and set top box are generic products and can be purchased perfectly lawfully and employed perfectly lawfully. However, on the evidence, all the signals transmitted by the applicants for their commercial pay TV channels are encoded. None of the earlier mentioned equipment would be of any use in picking up this encoded wireless signal unless there was a device which effectively decodes the encryption in the signal.'
101 The distinction drawn by Allsop J is, with respect, a relevant distinction in the context of the issues in this case. Section 135AL of the Act is specific in identifying the element of the device which causes it to be a 'proscribed device'. That characteristic is that the device must be one which is 'designed' to circumvent or, facilitate the circumvention of, the encryption which protects access to the broadcast, without the authority of the broadcaster, or which is 'adapted' for the same purpose. It is, in each case, a question of fact whether the device falls within that definition.
102 In my view, it cannot be said that any of the items of satellite reception equipment, referred to in [97] above, other than the unauthorised programmed smartcard, was 'designed' to enable a person to gain unauthorised access to the encoded broadcast. Each of those items was a product that was available for sale, and was sold by retailers for the legitimate use in the reception of satellite television broadcasts.
103 The applicants also contended that the insertion of the unauthorised programmed smartcard into the set top box amounted to the 'adaptation' of the set top box and by extension, all the other components of the reception equipment, into a 'broadcast decoding device'. The applicants pleaded that the component items were sold by the Mod Shop companies with the intention that a customer would obtain an unauthorised programmed smartcard, and then insert it into the set top box. Therefore, it was said, all the component items are to be treated as 'broadcast decoding devices', or a 'broadcast decoding device', for the purposes of the Act. In essence, the applicants submitted that the satellite reception equipment was sold as a 'piracy kit' to be used with the unauthorised programmed smartcard.