my name is albert zakarian i'm here with my colleague robert after good where appearing on behalf of the appellant and cross appellee scott when i don't envy this court on this particular case as it comes to you one of some twenty four thousand odd cases over the last several years thankfully the spate of all these cases being filed is over and we are now in the clearing up stages this particular case the i'm sorry your honor when the mopping up so yes your honor you won't see hopefully as long as the direct t v signal remains safe and secure thousands more these cases being filed i hope for their sake and ours this case comes to this court as a result of a bench trial in january of two thousand and four before the honorable stephen wilson my colleague and i were called in at the last second literally forty eight hours before trial to try the case that we had nothing to do with the preparation of it at that time during the bench trial there were only it's a couple witnesses per side and there was a finding with regard to liability and then damages and we're here appealing for points on behalf of mr webb one of those points the first point in the br is whether directv has standing to sue as an aggrieved person under forty seven u s c six zero five efore that particular argument if the court will allow i would like mr after to address as he's fully prepared to discuss that issue the other three points are whether judge wilson properly applied a continuing violations doctrine in order to save the otherwise untimely six o five claims that they brought in the case and whether there was a sufficiency of evidence in the case for judge wilton to find that there was any legal interception by mr at all finally and the fourth point that we address is damages whether judge wilson was within the statute and within his rights opposed evidentiary and legally to impose the damages that he did in this case and in my opinion based on the briefing it as well the incredible finding that mr webb was stealing direct t v signals from august thirty first two thousand right up to the day he stepped into the courtroom for trial five day has a one year statute of limitations on the problem with this particular issue is that congress in its infinite wisdom decided not to provide any express statute of limitations so it debated for quite a while during these cases over four years and in this case here what that statute was directing these original position was that it was a three year copyright statute and that's what should be borrowed that comes out of the pro star below initially was that if you have to provide any closed federal analog you would use the eighteen u s c twenty five twenty case because they both address the same acts and they're pretty similar those were our position judge wilson found and i think properly as i read his opinion that the u s supreme court set up a clear standard that you when you have no express statute of limitation you use the most closely analogous thinks that you borrow from the state first unless it offends some other elements in this case the court found that none of the elements were offended and that california local penal code statute should apply and a one year statute and he then went through in his violations theory equitable tolling he properly concluded was a non issue once directv got evidence of violations which was the may twenty fifth two thousand one rein so he dispense with that rather quickly so then we're down to the continuing violations theory and what he did is he used that vili to say that despite the fact that direct t v claims were on timely under six o five a given the one year statute of limitations that they were saved by continuing violations dr and i don't quite understand how that can work but our argument against that is it's clear we adopted the position of judge baird who is also in the district court in the l a area and she in a similar case involving directv versus scott corbin of which i was counsel we went to trial in april in that case she said that the continuing violations that would not applied to the six zero five instance because it effectively eliminates the knowledge requirement from the six o five step from the borrowed statue limitations and is my position that it would eliminate the statue of limitations altogether because if you have a statute of limitations that provides that within one year you have to bring your cause of action within one year of having that knowledge and in this case there's no dispute that the knowledge that they had came on may twenty fifth two thousand and one then what would be the purpose of that kind statue limitations at all if you could just continue to extend it in for an item using a continuing violations theory most of the cases so you can continue it only because there's a continuing violation mostly i should limitations you're talking about a more finite action you robbed a bank or that he robbed the bank and your two thousand and two is not robbing the bank today because he did it then but if you're talking here at least with regard to the interception side unless there is affirmative evidence that the defendant has disconnected and is no longer intercepting why is it not continuing that is a good question your honor and the answer is as follows number one i think your honor has flipped the burdens of proof it is direct t v requirement to show that he continued to intercept and in order for without yeah but if somebody got equipment mean you got a television set at your house it gets turned on most every day and i don't think we suddenly assume that today it didn't get turned on and we don't expect the direct t v to have an investigator appearing through the windows to see if the t v is on absolutely i think maybe direct t v is burden but the inference based on the evidence already in the table makes it pretty easy to satisfy that burden i understand your honor if in fact you could draw such a broad and sweeping inference from that evidence but as the eleven circuit indicated and alluded to in directv vs tree were g e they said the other problem that we have with it and they were addressing of course the twenty five twelve issue which is completely resolved at this point but they were addressing the actual inference that directv wanted to draw and that was that mere possession of the device alone means that you shouldn't first somebody w stop there one i can i can maybe understand your argument we've all bought things that don't work and it's not worth sometimes taking it back if somebody buys fifty seven over a period of time i think we can assume that technically at least at some point in time it worked and you don't keep buying those things unless there's an expectation of using them so you can argue that maybe direct evidence should be required but as a finder of fact i don't have difficulty inferring that there's a good chance there's fire there someplace somebody bought fifty seven pirate devices i don't think they're using them as as doorstops i think he's using them to pirate the signal fair enough inference and i understand that now let's look at the facts of this case however he and dead so what you have is you have how far does this reasonable inference that does the fire burn forever now and that's what you're suggesting you're suggesting that because he was divisive up to a certain point i can write this inference right into i recall going through the evidence and and i heard a lot on appeal about how all of that all these changes directv did this and that and so forth i didn't find all that much at trial and granted i didn't read the entire trial transcript but i didn't find  nearly so much a trial that in fact the defendant was defending based on well yeah i had these things but they didn't work any more because of what directv did well you're correct about that because the defense at trial was he did not feel any si all of a problem for me is that this is a trial this isn't a second chance for the tended to regroup and come up with another theory right but the defendant didn't come up with of a theory what with that trial was there was testimony from mr risler directv corporate representative and  acknowledges part of his testimony which he does pretty much every time i've seen him he'll go through that there were devices out there used to feel and that directv came up with countermeasures that were used to defeat those devices and at one point they instituted something you might recall reading black sunday this is the day where they allegedly fried so to speak a large portion of the hacked card that mr webb was alleged to have been using and from and then it goes there and then that hack card finally in october of two thousand and two was turned off completely and rendered useless now that would not only part of the trial but it was also part of the expert reports that prior counsel before we got to the courthouse had stipulated  in directv supplement supplemental x it's of record page seventy four specifically one of their report states that we had these different generations of cards and as time went on in order to defeat piracy we turn them off well the p devices mr webb was purchasing could be used for it was the peak to card so at some point factually the evidence shows that he was no longer able to pirate after a certain period of time and you're right i was as i was thinking about this yesterday the issues are just intertwined it's almost impossible to discuss them we can talk about the statue of limitations issue and then we start getting into damages except for a but that was because you know yes it's just what we're talking about now is  right so we're talking about a thousand and then you're correct about the damages your honor but as i considered this case this morning we're not here saying that that judge wilson incorrectly applied damages for six or five if in fact the six zero five violations are timely that i think he properly applied the damages the damage argument that we're we were going after clearly in the brief is the twenty five twenty  one thousand two hundred thirty seven days so if this court were to find that it was timely that the continuing violations there was properly applied however it wants to come out the damages is not an issue for six or five and it's not and it's we don't argue that in our brief we're not arguing it here the damage issue that i have a problem with is the august thirty first two thousand and to the day of trial and our primary problem with that is i just don't see one single piece of evidence that would point to the fact to the court that webb was pirating from august thirty first two thousand all the way up to the day he stepped into the courtroom there's just no factual evidence presented at trial or otherwise in fact the opposite is true when in response to my cross examination mr a particular message and i d s the message that showed up on his girlfriend's account that he was co habiting with said ok and that was in january february of zero one i said what else do you have nothing there was nothing so there were no indications from the court to believe that this guy was continuing to pirate with these now useless devise and since october of zero two at a minimum all the way up to the day he stepped into the courtroom there was no factual basis for that's one thousand two hundred thirty seven days and that was our argument on that and this court would have to find that judge wilson committed clear error and making such a factual finding and i submit to you that you can certainly do that because you can look at the record and say that there was nothing to conclude that all he said is because he had devices i infer that he was using them that's all he says that's dangerously close to the strict liability position that the eleventh circuit warned about in the three words a case and we don't think that that is proper application of the law certainly he has the opportunity in twenty five twenty see to give statutory damages of whichever is the greater of one hundred dollars a day for each day a violation or ten thousand dollars well obviously in this case it was hundred dollars a day but i thought the minute that if the judge is going to use the hundred dollars a day computation he then has a burden to explain how he's arriving at that and there's no one clinician here there's no evidence it's just exactly what your honor said once the fire is burning and once i see the smoke in the fire i guess it just burns out infinite item forever and there was just nothing at trial submitted by anybody to show that he was continuing to apply or during all that time but in fact there were evidence almost entirely from the plaintiff side that there were physical limitations on his ability of pirate imposed by them shut off the car that he was using completely to issue a new card to somebody else they never had any evidence that he ever possessed any other car than that one period two car what they said a trial was well they were available well he could get his hands on one he could get into and got a gun we don't know what he could get his hands on but what we do know is that's the only evidence they presented so there w think that this court can say and it's kind of convoluted i think at a minimum this thing should be cut off in october of zero two at a minimum because at that point b it hacks card that he had was completely useless and that the evidence that i get from directv his own expert reports stipulated in by previous counsel supplemental expert record seventy three seventy four directv will have to argue at that point that that shouldn't be the cutoff because there's some other evidence that he possesses further devices but this is very easy the facts show you that he stopped purchasing devices as of december of zero one so he stopped purchasing devices cards note excessive generations of cards no ability to pirate after that it's all speculation and that's what you'll hear you'll hear well he could have got this and he could have got that well he could've but he didn't  he other back side of that argument or the flip flip side of that argument is the question of whether they can get damages for violations that extend beyond the two year statute of limitations now this is different than the six zero five case you know twenty five twenty gives you a two year statute limitations expressively in the statute so the question at that point it's directly to find out on may twenty fifth two thousand and one that there's violations occurring they sit on the evidence for almost a complete two years and at the last second of may twenty third of two thousand and three they file the case so what the question then becomes what are they entitled to as damages everything going all the way back to august of two thousand i submit that there are only entitled to the damages that go back to may twenty fifth two thousand and one rate and the reason is they voluntarily sat around on this stuff until may twenty third two thousand and three and and i just know why they had over twenty four thousand cases eventually got filed and i understand that they filed them in droves in order to be within the statute limitations but in this case you've got a two year statute so being able to collect on stuff that goes all over back to august two thousand seem to fit with the intent of the statute and although most of these statutes are not applied in this fashion directv was kind of unique the way that they did it they ended up with draconian damages being inflicted on people failure by congress to enact specific legislation that addresses an issue as an indication of congress's intent in this particular situation at least four times is there any logic behind the position that congress intends to let people swipe signals from direct satellite providers absolutely none your honor we don't contend that direct me does not have standing to allege claims under six o five a recover liability and damages on that basis but when i say any loss of party agree i mean talk about standing and maybe the that you're taking the turn to mean something broader but i don't have any difficulty with the notion they have standing there may be a question as to whether the four reaches the conduct that i was accused of but standing directly to is surely an aggrieved party if it's their signal that's being intercepted well i believe four or six o five a that's not in dispute certainly for six o five before it is congress apparently does not believe that that providers of direct the homestead light services has standing to bring claims for violations of six o five before if it did it would are lots of reasons that they don't help you so much as they think it's already covered by the statute they haven't contributed enough the other right lobbyist who knows what but what makes you think there's a considered decision by congress not to let somebody in direct t v s position receipt with a claim under efore well i think it's because of the range of damage as well it makes sense to extend liability for for people who are violating our intercepting subscribers is an infinitely greater violation on an intercept of basis than it is for a single individual to do a similar thing with direct home services because of the damages component being held to a greater degree of liability well i guess i'm i'm just i'm not sure i follow that because people that were picking up signals me ok i live in hawaii where we have pretty much cable service it's only very recently that the direct services of reach that far west not here with those but i never heard of anybody going into the zone cable business that is picking up the signals that are intended for time warner oceanic cable and said it was own cable company distributing brothers interception cases are always really personal use cases which is exactly the same thing that mr webb is charged with now any speaks more to interception efore speaks to either or both of somebody who's fire in the food chain or somebody who's doing something to decipher to decode a doesn't require decipher efore arguably does and so you can argue that modification word is used in the for gets to somebody who pampers with equipment in such a way as are going to be able to pick up a signal they're not supposed to pick up and there's nothing hard about picking up the signal itself anybody got a satellite dish and but it's the it's the breaking the code part that you for maybe intended to reach and mr webb was accused of breaking the code so why would you say that congress has made a considered judgment to let people break the code in a form and it just seems unlikely that congress would s and so obviously congress invision that people who've been manufacturing these types of devices would be doing so on a large scale as they did during the heyday of the cable clone boxes and that's why it specifically says satellite cable programming when referencing the standing forty four planes under efore and congress has considered adding direct the home satellite services so congress clearly makes a distinction between  to eat for before itself makes reference to direct to home satellite services it does in june the four is a criminal statute but in order to get as far as being able to make a claim under any for a also not must also shall also include that's what i tripped here because the says ok you got this group that's covered and then with regard to you for also got this group it doesn't say the first group doesn't have standing anymore i just find it very difficult to understand how direct t v could not be a person of greed in some fashion it doesn't say only the manufacturers of cable boxes have standing it so as you've got this group and they're not you for also include i suggest adding on to the first it does however in this particular case congress has expressed we consider earning direct to home satellite services and by not in acting that relying upon  thank you thank you the electronic communications privacy act and what judge wilson concluded was mr webb violated two aspects of the statutes not only for unlawful interception but also for being engaged in the business of distributing modifying assembling selling pirate access devices i would like to do two things your honors i want to focus most of my attention on the question of what statute of limitations applies to claims under six o five the only issue that we ask this court to reverse the district court on and then i want to address briefly each of the flaws that mr webb finds in the district court and show you why you should affirm in all respects but that one question of the statute of limitations for six zero five with respect to the statute of limitations issue this is what the district court got wrong he had to determine what statute of limitations should apply to six o five because none is found in that statute and he had to look to either federal or state law the courts in this circuit are split on this issue in list of additional citations i provided the court last week i had then a fide a court in oregon are going district court and i don't know if those citations made it to the court yet but the are go district court as well as the arizona district court which is cited in our briefing have both gotten this question right they have concluded that the two year statute of limitations under the wiretap back should apply to claims under six o five and i'm going to point out for mistakes in judge wilson's analysis first we should start with the state statute of limitations and hear what the district court found was the analogous state statute was the california piracy statu i point out to the court that that piracy statute itself has no statute of limitations and there is no reference in the piracy statute in california to it's actually very very common with regard to state law and if you state that i have seen that now dealt with cases from what  nine states that are circuit and a whole lot from california it's pretty common to have you with asians mostly concentrated it often happens your honor and the fact that it doesn't have a special imitations in and of itself isn't a reason why you wouldn't go with the state law but i put it out there because both the supreme court and mally duff which i would suggest as one of the two most important supreme court decisions for you to look at on this and this court in the sure word case said that when they were trying to make a comparison to find the most analogous statute to use either federal or state both unsure what in the ninth circuit in an alley duff the courts rejected using a catchall statute of limitations and went with a law that was more closely analogous than a statute with just a casual the reasons though here this court should go with the to your special limitations from the wiretap act for the following three reasons number one there is a very close nexus between six o five and twenty five eleven the  record at page forty three of mr webb's record excerpts so that these two statutes quote address completely different behavior that is not consistent with this court's decision and land which we cited in our briefing inland this court made clear that six o five day and twenty five eleven one day both for hit the unauthorized interception of satellite communications and if you look at lindh in particular at pages nine twelve and nine thirteen of that decision the ninth circuit zeiss legislative history from both statutes both from six o five the m twenty five eleven which acknowledges that the other statute is out there to do the very same thing this is a unique instance where you have two federal statutes that are aimed at accomplishing the same thing which is providing civil enforcement to try to eliminate or at least an evil damages for a company like directv whose signals are intercepted so the reason i raised judge left in the capital was to take the california piracy statute and compare it to what we were offering up as the most analogous federal law which has a very close nexus to six o five the third point though is that satellite piracy demands a national solution and judge gregersen you wrote one of the two most significant decisions that we cite in our grief from this court on this analysis a federal versus state statute of limitations it was the sierra club case from one thousand nine hundred seventy and in that case what you were confronting was what statute of limitation should applied the clean water act and what you recognized in that case what the court recognized was that the clean water act had a need for a national and forstmann regime and as a result it made sense because there was a national policy of trying to address the need to enforce the clean water act and to complement the e p a s regulations that are as a result  was important to adopt a single uniform national statute of limitation by turning to a federal statute of limitations rather than the state statute and i asked the court to look at the legislative history we cited about six o five at our briefing in our opening brief of page thirty four we cite legislative history from the one nine hundred eighty four cable act that's the part of the legislation that amended six o five to cover the stealing of electronic communications and congress said that issues affecting the cable industry are national in scope and that there is a need for a national in foresman regime that's quite similar to the kinds of concerns that were motivating this court in sierra club when it chose to go with a single uniform statute from federal law the other thing i would point to in this regard your honor in choosing between a federal and state statute is that i ask the court to look at two supreme court decisions which we cite northstar which is the supreme court's most recent analysis and then malley da'ath which is a few years earlier from i believe one nine hundred eighty seven they offer a very clear contrast between when you should go with a state statute of limitations and a federal statute northstar that was a case where there were employment claims arising out of a single plant closing mass layoffs at one plant and there the court in northstar although recognizing there is an exception to apply a special limitations from federal law in that case went with state law then you have the instance of mallory duff that's the other supreme court case there the question was what special limitations should be applied to rico because rico didn't have its own statute of limitations and according malley da'ath in shoes inc a federal statute of limitations in going with the clayton acts statute of limitations so that we recognize that rico actions involve interstate transactions and they are both the state in nature that's exactly the situation here not sure i mean let me pause on that short because i understood malley doubt that talks about rico that the predicate rico violation can come from several states and in this case you may have people who are intercepting or who are unlawfully modifying equipment in several states but each of them are doing it in a single state there's no question about or are concerned that webb was doing it in california and nevada and oregon where as i took the molly death decision to speak of the concern that the predicate acts for a single lawsuit a rico lawsuit could be in lots of different places your honor i would argue that that an even stronger instance than this case because you're right there are often predicate acts that require interstate transactions and it isn't necessarily the case that in a case like a direct t v lawsuit that you necessarily ha interstate transactions that are predicate acts but if you look right after two sentences after that statement by the court anally duff i think that's a mildly duff court is talking more broadly than merely when there is an interstate transaction that is a jurisdiction component it recognizes that there is a multi state nature of rico and i would submit the same thing happens here your honor i don't think so it's certain from from directv perspective it's multi state but anybody who's a national manufacturer or distributor something isn't just about a man who bought one device and decided to steal a signal in his home the district court found as a matter of fact and law that this man in gauged in the business of purchasing these devices and then distributing and selling them we would submit tha it is just as possible that mr webb's illegal activity involved interstate commerce in or straight state transactions and thought about that partners or it could be on the record with regard to where he where the devices went to there's no evidence as to where they go to but i'd refer to a point you made earlier just like we can't peek into his window and find out where the what this man was watching in precisely when he was watching i submit that it wasn't possible to know necessarily what he did with all these devices so i think the problem there is that you can infer most tv's go on i don't know that you can infer that most pirate devices that this guy is distributing because he's fairly low level operator fifty seven and only you can infer he sends them to other states you know but i don't think that should be a burden of proof on directv to have to show that he necessarily sends it to other states but if he doesn't then how is this a mallet off problem because i think really does stands for more than simply that you have to show a predicate interstate act for example the papa case which is a ninth circuit case and i believe that your most recent analysis of this of this question of whether you borrow from state or federal law and again it's also cited in our briefing there this court relies on northstar and the court says we normally go with the states national imitations but not one three things happen number one when the federal law provides a closer analogy and we would submit that in light of the legislative history from both twenty five eleven and six o five showing the interplay in congress's recognition that these factions are doing the same thing that brief to the fact that states around the country have one year or two year or six year or for your statute of limitations and you recognize that this isn't for example the single layoff at one plant as a northstar i think that this is an instance where practicalities of litigation which is another one of the elements that this court and papa said are significant come into play so not directly the is not arguing that the california statute bears no resemblance to sexual five of course it does standards the first comparison is between the state statute pertaining to the unlawful conduct and here f m is a pretty close friend and that that's where you look at our energy to look at the pop a decision from this court and statute closer than the state analogous day and we agree the state of the statute is dead on it's a piracy statutes of piracy is that how can we even talk all you want about how the two federal statutes are more closely related than judge wilson said but i still don't see how they get to be closer related than the state statute i take your point other than the fact that congress says we're trying to we are amending six o five to offer an additional remedy just like twenty five eleven but your honor i think it's more than just that  consider the practicalities and we raised this in our briefs and mr webb doesn't respond and it's an issue about rescuing a kata and a practical consequences of what happens if a one year statute of limitations is applied to the six o five point these claims it leaves directv with this choice either it has to forfeit the second year it is entitled to under twenty five eleven and bring its twenty five eleven claimed right away at the same time as the six zero five claim in one year  directv has to forgo its claim under twenty five eleven because if it were to proceed just with the six o five claim and it is i'm not sure i fear the argument as the macalister case and all costella facts mcalister pretty far removed from the i won't try to go there but instead i thought about that for a long time and understand it on one level but i also i say but the you know the same problem regarding the state statute to the extent that you want to use the california piracy statute and add that to the list  you're obviously not arguing that that we ought to extend the statue of limitations for that to a second year because of this federal right but you know what the problem is is similar start your limitations are there you make judgments the fact that there may be a longer statute of limitation for one cause of action then there is for another does not ordinarily lead to extending the shorter statute of limitations on the calloused or it did costello and got us all yes more research really isn't as different than the maritime case i grant type cases are there but it's not true as a general principle that you look to what the longer period is just the fact of life is you've got your causes of action you make your litigation judgments and you proceed with what you still got in your hand at the time agreed but when we're in this rubric where we're analyzing whether we go with a federal or state statute of limitations and you have congress signaling that these two are interrelated and you recognize that this is a national problem again if you put it on the spectrum of the single plans laid off or or a single civil rights infringement as to one person or something that of course is a multi state in nature in the sense that we have twenty four thousand cases in direct t v having to make judgments about where it's going to file suit and how statute of limitations applies then if directv did not bring its claim under the wire tap back and only brought it six zero five plane and that went to final judgment i recognize that directv would probably be barred under arrest or caught a principals from bringing the subsequent lawsuit or a violation of twenty five eleven because these two federal statutes are basically attacking the same transaction or occurrence so that's why i raise it and both macalister and all costello say we won't the full benefit of federal law and i think that's a further reason why you would create a uniform decision here i think both sierra club and pop up to nine circuits cases going with federal statutes are ones to look at closely in that and congress recognized it didn't have the manpower to talk about burdens congress concluded that the federal government didn't have the manpower to be the entity that would try to enforce this law by itself and as a result under six zero five  created civil actions that companies like directv could use and i would submit that when a signal is stolen and you have a national problem with twenty four thousand potential pirates i'm concerned that we would before there's a risk of that with the volume of this problem that one year to confront this national issue wouldn't be long enough and it makes sense to marry it up with a two year statute of limitations under the federal wiretap act under act but i want to understand a little bit further reasonably defendants would say wait both of these claims arise out of the same transaction you're using the wiretap act now to sue me for my own authorized interception of your signals which is just what you did in your first lawsuit under six o five the continuing violations doctrine applied he gave the damages for one violation of six o five even for it however a two year sexual limitations applies we would then go back on the remaining and for damages based upon this distributor of piracy devices for violations on six o five four hundred twenty some thousand dollars in the nuts is that you're going to collect this not necessarily your honor but if i could address if i could have a couple months i know they went over i'd like to just briefly in succinctly give you a couple of responses on their arguments the best ok including seven hundred sixty days which is the number you're looking for before but i'll get to that in a minute there were four arguments mr webb made the first one was on continuing violations point number one is this court does not need to reach the continuing violations issue if you conclude that the two year statute of limitations from the wiretap act applies however if you do reach that question here are just a couple of reasons illegal acts and i believe that the old laughlin case from this court that we cited in our in our briefing is probably the only case you need to look at although it arose in the civil rights context what the court said was the continuing violation doctrine applies when an injury a step stems from ongoing illegal lax and that of course is what happened here by virtue of this series of purchases and distributions that judge wilson found the only other point i make on continuing violations is that it's an equitable principle judge wilson at the end of the trial said that he found mr webb story totally incredible he found the story disturbing and he said that mr webb's appearance and demeanor created a stench i haven't practiced law in front of judge wilson but i can't imagine any district court judge going being that specific in going to that length to make clear how incredible he found a party story and we don't believe that mr webb's other illegal acts should be insulated from our being able to pursue claims because a special limitations got cut off with respect to the person aggrieved issue which is what mr abbott spoke about only say a couple of things unless you have other questions this question is whether or we see no basis for claiming that we don't have standing here and really mr aphids argument comes down to only one point he said congress chose not to amend the statute to add direct to home satellite service providers  would submit that maybe the reason congress didn't do it was it didn't feel it was necessary to do it because as you pointed out judge clifton the plain language of the six is broad enough to a compass that i think the only other point on person aggrieved is to flag was just a term of enlargement offering up examples with respect to the findings of fact and this gets me to the damages point judge have you asked a question about this mr zakaria spent most of his time challenging i think he was challenging the findings of fact and the damages award on the findings of liability i don't think there's any question this man bought fifty seven devices over a year and four month period he was found  distributing these devices on the damages your honor even if the district court should not have had damages go beyond october two thousand and two when the p two card had its stream shut off in the next generation of cards began that would be seven hundred sixty days i did do the math in my office the other day so if you are applying damages for interception one hundred dollars per day from august thirty one two thousand and i we did the math again at the cheat at our desk here i think we were right if you take one hundred dollars a day from august thirty one two thousand until september thirtieth two thousand to give the benefit of the doubt and assume no piracy in october of two thousand and two that seven hundred sixty days were seventy six thousand dollars as opposed to the hundred twenty three thousand but let me make one other point about the damages clear this man did two things wrong number one he violated two federal statutes by intercepting transmission but the second thing he did which is a distinct illegal act is violate six o five ethers clipping you are focusing on the distinction between those two provisions whatever happens  to modify at some level the damages under twenty five eleven we believe that there would be a we may end for damages under six o five efore whether or not we can collect from mr webb the truth is i don't know but congress gave direct t v this distinct arsenal for people who aren't engaged in a business that goes beyond just buying one device and stealing programming for themselves what would the effect be if you were correct that the through thousand applies this is what i believe should happen in the case you will remain and there might be some modification on the twenty five eleven damages maybe a lowering at some i thought margin from one hundred twenty three thousand to the seventy six thousand your honour's i w and mr webster counsel didn't say this i'm not entirely sure that we're entitled to the thousand dollars that we got for one violation of six o five a directv it might be a quibble but i'm just trying to be consistent with the supreme court here which is  am twenty five eleven one they are designed to try to capture the same thing illegal interceptions and by having received damages under twenty five eleven one any we wouldn't be asking on remain on for any further damages for six o five a day the only other thing that would happen judge hog is there would be an damage award for fifty six additional devices for violations of six o five the four we already got one good wells in applying the continuing violations dr gave us one that would be an awar five hundred sixty thousand dollars that is a lot of money that is precisely what congress invision when someone buys a device that doesn't merely give them the ability to steal the signal for themselves but allows them to modify cards and make profits by doing it for other devices he presumably distributed most of them other people but i'm not sure he's got a continuing violation having kept and continued to use one that's right but again draw a distinction if you would between six o five a which is going after him for using it for his own piracy on his own t v and six o five efore he bought these fifty six devices over the course of eighteen months and there's no there's nothing that suggests that he wasn't in the business of continuing to modify cards with these devices for other people modification is a violation of six of i v forks and there's nothing that suggests that he didn't distribute these devices going forward well maybe but again i don't think the inference is quite the same as turning on a t v it may not be a bank robbery that happens one finite time but if he's gotten fifty seven devices you don't assume that forever he's in the business and how conclusion of law from judge wilson below saying that he was in the business of distributing with respect to all of these devices and was in the business within the one year period if a one year statute applies i guess i'm holding out hope that two years after i understand them but we were allowed to only have a one year statute of limitations that means we could only be capturing devices that for illegal acts i should say from may fifteenth two thousand and two fifty three of the fifty seven devices that he bought were bought excuse me they were bottom within two years of may fifteenth two thousand and three and i problem is seen to me by picking one judge wilson was treating at the same as well he's got one that he's using and and i think that might not necessarily be right and i don't see just that for a distribution of fans that's right i think that judge wilson for one i'm not really sure there wasn't really much analysis on that point frankly and if in fact this man was doing something more than just pirating for himself and was in the business as judge wilson concluded then i would suggest that he would get more than that because there would be no principled basis for just limiting it to one your limitations right we have to tell them a special invitation so if you were to reject our position on the statute of limitations and form and find that the continuing violations doctrine applies we think that it be appropriate on a remained for damages for the one thing you asked what the what the effect would be if this court were to adopt the two year statue of limitations for six o five and what the fact will be is there will be a distinct split in the circuits and it will go to the supreme court  per view versus eight ninety eight belmont nc third circuit april two thousand and four three sixty six f thirty two seventeen rejected the very arguments mr rubin just made to you involving the exact cases so if you do that you'll be in direct concert conflict with the third circuit that will be the effect of it thank you well we're used to that so yes well i know you're not scared of that i'm just saying that would be the effect  recess now and we're going to hear another kid a speech where judge gould is on the panel and he's from seattle so we're going to do that in chambers with our video conferencing