my name is howard rubin and i represent the appellant directv these appeals involved directv claims against four defendants all four men bought illegal pirate access devices that are specifically designed for the purpose of after the full proof of hearing is it war on and on how many intercepts there were ok i'll start with the first question what what constitutes interception interception is when someone bypasses direct t v s in christian technology and is able to watch programming without paying for it quite simply they might have a low level subscription that doesn't give them access to movies or pay per view events and they use a really two things i want to do and one of them is that very issue i think that judge hogan asked the wrong question when well i'm asking the same wrong question i mean the reality the thing is i mean if you look if you think that my analogy to copyright law was no evidence of how many times if any there had been interception for him to pose the question whether there was any interception at all i think is the wrong question given he had already found the defendants liable on the call judgement for having there wouldn't have been a claim but for actual interception here the reason why it's inappropriate to impose on direct t v the obligation of showing how many times is that by definition piracy is stripped by nature this kind of stealing happens in people's homes bedrooms living rooms and there is no you said that how would you know whether to use statutory damages of one hundred dollars or ten thousand actually congress contemplated that there are there would be instances for these kind of violations the stealing of electronic communications where we'd never be able to know if you look at the damages provision twenty five twenty two is the provision for statutory damages and congress allows for either one hundred dollars per day for each day a violation or a flat ten thousand dollars i think that's congress's pretty clear statement that it recognizes that when it comes to stealing satellite programming where there is just simply isn't possible for direct t v to know when someone turns on their in looper and steals programming that there's another mechanism and congress recognizing that these are serious violations this is the stealing of these as i understand your argument that what you're basically saying is that once the district court judge found that there was  than one footnote where he references the definition of the particular device that was used to judge hogan never mentions that affidavit and let me just quickly walk through the things that didn't consider that in our view demonstrated that there was harm to direct directv customers spend about twenty seven hundred fifty dollars a year we have evidence that showed each of these men bought devices in either two thousand or two thousand and one and that there was a capability of using these devices to steal programming all the way through april two thousand  making the twenty seven hundred fifty dollars times three or four years i think eminently reasonable when you consider a ten thousand dollars statutory damages where we walk through all the different ways directv spends money combating piracy creating an office financially harmed by piracy we think it's the wrong question specifically on the fault when the defendants abused visual prashar process and at no point ever show up in court to hold directly be accountable to show how many times the standard then what the court has done is give defendants a blueprint for never showing up in court because there would be no incentive for the defendant to come to court with that new directive he's never going to be able to figure out how many times i stroll in if i stay home this respect or process there'll be no access to me for a deposition there'll be no way to get discovery whether that's imaging a computer hard drive or identifying other people who are witnesses that could be deposed we are not setting up the standards that we think should one seventy four which was the leading in all the opinions are basically identical things he says direct he never showed me how many times if any there was interception and without conclusive evidence of actual interception i'm not going to find out midges a case have as well that piracy the surreptitious by nature it just can't possibly be again in the default context that we're going to make direct t v show the number of times someone pirated is precisely for that reason that we offer the evidence of the high end user it is the best circumstantial evidence we can offer to justify the ten thousand dollar award last week about ten days ago we provided the court with one additional citation it was direct t v versus and we're not suggesting it's controlling on this court obviously but it's a decision from the eastern district of california that we've asked the court to consider there it was actually a summary judgment contest so i think that we actually have a more powerful argument here in the fall but you'll see a completely different method of analyzing how you figure out damages under the wiretap act when someone has stolen direct t v and i'd submit although it is absolutely the case that you're evaluating this on an abuse of discretion standard i submit the only choice you gave that the judge was zero or ten thousand dollars yeah yes that's right because in our complaint right of the announcing to the defendant we said in the event of a default we sanctuary damages under eighteen u s c twenty five twenty c to be so we were notifying the defendant if you don't show up we're going to ask for ten thousand dollars and then in our paper supporting the fall judgment in the affidavit we again repeated their request for wire