contain only sales and nd by holding that a partition cannot be a recurring object it's undisputed that the devices here reproduce digital musical recordings in a digital format in simple simpler terms they copy c d s digitally at least in terms of capability the only issue that is before the court on this appeal these devices are much like personal computers that personal computers and they can census has been that personal computers are capable they satisfy the capability requirement diamond the th circuit case which has been extensively briefed here itself recognized that personal computers are capable of making digital audio copied recordings then after decision which has been cited also recognizes that personal computers are capable of making a digital or you copied recordings it says that the only reason personal computers are excluded is because of the primary purpose test the primary purpose just is not before that before the court today in fact in napster the united states that currently but at the last time we had looked at this issue they still were i did minutely these particular devices there is more a lot more streaming in other issues that is occurring but these particular devices at least as of the state of the record sometimes the planning meaning is not the actual meaning you have to read it in the context of the entire statute and this is that you if you look at it there are three reasons in which i would like to go through as to why another does not definition made sure that no devices with the primary purpose of copying programs would be included in this and that finally importantly there is an express exclusion within the definition of digital audio recording device that excludes answering machines and be patient equipment that would have been the natural place to have a definition that excluded devices that stored more than only sounds that device and nd and uncritically when the court decided that another should have its plain meaning in that context it's stated expressly to thirty sets that it was reading out in a digital recording format from the from the static so that immediately that calls into question whether another should have explained meaning those words have meaning when the word is interpreted no we we would with respect to the st part in her the st part is that these storage media do not have to have only sounds and they don't have to have only some correct they do not have to meet the definition of a digital musical recording as i primary purpose primary purpose was the key in the legislative history and in those other in time in the several that talk about how personal computers get excluded by virtue of this definition primary purpose is written with written out of the definition of a good primary purpose means there can be secondary purposes the legislative history for example indicates that video cassette recorders were capable and that's because you can that got moved forward and there is no discussion anywhere in the legislative history that by that moving forward from phone records to who are your ground to digital music recording that congress meant to entirely  entire meaning of the statute they were not intending to in the words of the supreme court put an elephant into a mouse hole in the rd argument relating to that point actually the rd point is that this puts within the music or recording definition is undisputedly on the input side they're trying to put that onto the output side and there was clearly additional clarity was gained over time to make sure that the things that were cop fear by the computer industry that was there during this whole we go see action there was a fear on their part that the term phone records could include programs and if those were included then the primary purpose would have said ok to have the primary purpose of senate report the computer manufacturers to reply agreed that number three there was a concern that there was no expression in phonograph that could form a record that would exclude programs and that's that phrase meant in time and it took out the another phrase and talk about that record in the senate when it paraphrased what it meant it said regardless of whether that reproduction is made directly from the a the another that those have been perfect situations where another could have been discussed but they were not in those situations they were totally taken out of the statute the the district court mentioned to  with the outward sign and the immunity section the court used that you know very odd way because it's affectively it restricted the immunity by taking these devices out and said that was a reason to suggest the partition argument the court said that the plain meaning initially was a physical tangible thing that was fine we agree with the plain meaning there but then the court and it extra occur there though found that a segment of the hard drive which i think they were saying i did not have a lot of have but i have a it is a physical material place on the hard drive and so i think that's the sense in which we're saying it's tangible final point on that is that the the district court's decision would essentially say that a device that tomorrow drives one never according to music or one that one that stored say maps or polos that device would not be  what's going on that would be a reunion that would go to the to the district court and then there would be discovery with respect to with respect to primary purpose so that when there is no decision that was made here as to whether or not  your recording devices the fans will have their opportunity to say that they're not to prove that they are actually more like a typical p c is we think discovery's already shown that these devices are nothing like typical p c s and that they do partition for music says that the court requested a briefing on this issue the whole court case says that separate judgments separate cases require separate judgments there was no separate and therefore separate factor that the courts have looked at there was no clarity the district court indicated that there the appeal was timely f c a in its motion for a band's indicated that the appeal was timely  easier any more no record would be a digital musical recording you focus only on the court house so you know the definition for digital music recording on the input side specifically excludes computer programs videos multimedia that was the that was the the whole reason behind that definition to make sure when you applied the primary purpose test those things were not included on output side it had nothing to do with the output side the output side can have anything on it it just needs to be a digital copy recording it can have anything on it the concern was let's not capture devices that primary purpose is to copy programs or videos so by making explicit the definition of the a more it assured that when you look through the entire statute and use the primary purpose test devices like a typical personal computer which copies programs copies photos and it's is for the recording function of that device which is the focus of this is not to want to copy music the primary purpose or part of it to figure out whether it's copying d'amore whether it's copying things with the programs does that mean we're not doing any of that we don't have to get into the primary purpose  the only reason i'm mentioning primary purpose is to explain what the actual argued was what the computer industry wanted and that's happened that's how it was attached to it and that has nothing to do with the question before the court may please the court scott keller for the us the plaintiffs trying to rewrite this and you just heard from them what they want to do we really insert the term photo record back into the statute when congress made a specific term just for this act which is digital what is a copy a digital audio copied recording which also in turn necessarily refers to is a digital musical recording and what they're trying to do in the definition of visual audio copy recording is read the word another right of the statute and we don't rely what kind of rot yes this is a member of this it helps because of the language making digital musical recordings this is a provision of refers to unity for certain copyright actions in this and it says that when there is noncommercial use this is the final clause provision when noncommercial used by a consumer of such a device or medium for making digital musical recordings that's an easy case in will making digital music recording is the point that means that digital audio copy recordings have to also be additional musical recordings this act was concerned about is the output today going to become the input that is being cop these are easily distributable removable devices that college roommate could hand to hit his or her roommates and pastor and or you that was the nero grand compromise struck here and this definition of visual music recording this is what replace phone record in there's program exclusion and in the context of what was happening here the computer industry came in halfway through the game and that's why the statute was changed and one point i'm trying to do is go back to the beginning and try to re aware the partitions were there if you would take this protection theory to its logical consequence then putting the digital musical recording definition of a material object on the sounds that would have no limitation at all a hard drive and by the way a partition is not a separate removable distributable part of a hard drive the entire drive has to be operating to actually perceive of the partition data and even then i that would have two thousand five hundred dollars per advice in statutory damages that would sweep into all sorts of technology that this industry spent billions of dollars that even the recording industry itself in two thousand and six in the  location on the hard drive or data storage that doesn't somehow transform just the partition into his own material object and even the sugar acknowledged a partition heard still one physical this we're talking about one sounds you wouldn't you can't just give the harddrive in the middle of a dashboard of a car to a friend and somehow have a lot of copies of music past that these are integrated components within cars and  navigation then and they have their software for backup cams they operate the radio they have voice recognition commands this is a multi functional computers identical personal computer but absolutely it is a hard drive that has m recorders is the technology that this act was supposed to be targeting and devices like it will produce a material object and the sounds if i can also address the primary purpose or even slightly because there are given but i would like to point out you're on the definition of digital audio copy of recording you were going about that goes both to the capability and the primary purpose from because both of those are tethered to that visual you report so i agree that it is not the case that somehow the decision that you have here is not going to affect the primary purpose for it absolutely will this issue from conjunctive test also is not like the statute was drafted to sweep in all a material object it only sounds and to places that have on your store on computer like memory which is exactly what we have here those are not included by this act that was a recording industr because you cannot read another out of the statute and to the consequence of that is audio files that are for own computer like memory those are excluded by yeah that's exactly why  that argument was and that is reflected in the x m decision in their footnote for their argument was that was brief and at last so anything comes out of the axiom case that that argument is a loser dinon says the same thing that these things are capable said it looks like a cable system we're going to treat it like a cable system and you don't need to go it's also set an area you don't need to go further than that in this case in addition the notion that everything else will be swept in as a result of this again or back to the primary purpose if something records files to any partition and its primary purpose is not to do that recording then it would not sweep in anything it has not been decided and in fact we've seen over the years computers have not been there been the lawsuits against computer that comes about  purpose was this serial copying you shoot that leaves out the other purpose of the statue which was provide compensation from the st copy there was an earlier version of the statute which only involves serial copying that was rejected by the music industry the record as a copyright of the said the music industry is hurt by every individual making that st copy it's not just about whether or not these devices can copy al it's about whether they make a copy and they can also be prevented from making copies of copies so that is wrong in terms of the immunity argument again the district court recognized that the statutory purpose here was to ensure that consumers had the ability to make digital audio recordings and then it interpreted use the immunity section to shrink that immunity and kick these kick these devices out in terms of their repeated statements that this was a narrow  narrow statement of the congress wanted something narrow congress said multiple occasions this was to keep pace with a rapidly changing technological world and they said also that it was to encompass summary one of ours main purposes was to prevent the battle between copyright holders suing manufacturers and then there being a fight over fair use that's what the intent of this statu leaves exactly in that direction toward or copyright infringement action which defeats the whole purpose reversal on the st point will implement that statutory purpose and avoid additional litigation with