people modified game consuls to be used in the variety of ways diverse as playing d v d s or surfing the internet or playing video games at person writes on their own playing video games purchased another country and also playing pirated the key issue at trial was whether or not reichert was aware that by selling these games he was violating the law violating the digital millennium copyright act there were no direct statements from computer that is inside the video game then it's totally legal a direct statement from him indicating he thought this was a lead to get that out there was no evidence to try i don't i could speculate or i couldn't get that there is no evidence where he and there was no evidence where he formed his opinion regarding this interpretation of law or other interpretations of all that he indicated evil for example he wouldn't if someone normally think that if you're facilitating someone else is violating the law you might be violating the laws when that sort of background is on it that certainly is the government's argument your honor in rebuttal i would suggest two reasons why that may not be case way that why that might not affect the court's decision first the basic premise if you are facilitating illegal conduct shouldn't you know that what you're doing is illegal like if you sell s a product it's a thing that can be used legally or illegally certainly yeah sure so it depends a little bit if that's the distinction you're trying between how many legal and illegal uses something is almost always used for illegal purposes but one of these great police radars to point to keep from being subject to police on the street it's i think hard to think of too many legal uses for and i think those though are actually legal to be sold  depending on the state i think there are places where you're allowed to have one and i think i'm sure of it but that's why i'm not saying it's always illegal saying something like that where where the where most people would think that most of the uses are for illegal purposes you might have sort of a background assumption unless it's countered by knowledge of the law but it's probably gets lost my i mean once that's that's what i'm asking i'm not sure it's just just for purposes of figure out how likely it is that you know leaders your honor with regard to full knowledge versus a reasonable you know a person should know this the law is that he needs to have known he needs to just as in a tax case you need to know that what you're doing is a violation of tax law copyright law is clear and criminal copyright law is certainly no exception to general copyright law which is that this conduct must have been committed willfully you have to have anything more specific on that because this isn't exactly a copyright of violation of copyright so that we know it would make sense that if you violate the copyright laws you should know that it violates the right but you know i'm not sure it follows that if you know that you're helping someone else violate the copyright laws you need to know also that helping someone else violates the law violates the law that is which is a different argument right and i think this gets to judge donald second question also is whether or not this was a settled state of law there was only at the time of our prosecution there was only one prior case i believe that went to trial and ended up being dismissed either mid trial or maybe the prior to trial in that case it was indicated that they're held that willfully was going to be the standard the government put forth a willfully standard in their proposed jury instruction in doing so they followed the rules if you will or the suggestion if you will from the department of justice in their intellectual property prosecution manual before we get into that i wan make sure that judge donald satisfied with the answer both parts  i think i think that question goes to the very heart of the the defense your honor which is that this was an unsettled state of law as mr reichert indicated when he was arrested it is a gray area as i indicated i said in my brief there were papers put out in the cornell law journals north carolina law journals referring to the use of my chips there are books on how to do this there are videos on how to do it these chips could be purchased on the internet and shipped again nothing had to be done surreptitiously didn't need to do anything absolutely not your honor but whether or not the law was clear i believe goes to whether or not mr wright was clear about whether or not he was violating that goes curious but it does ok i mean that's what you write your own it also goes to the issue of whether or not he should have been permitted to introduce his statements to his friend having fell sick in the in which he indicated i think this is legal i think as long as i don't sell pirated games i can sell the modified game and it circles back really to the example of well what about selling devices that detect police radar that seems to be legal although as judge rogers notes it doesn't have very much real legal application i think another interesting example would be selling rolling papers if you will cigarette papers which are you going t instruction argument or the birth or admission of the sort of both your honor but with regard to both of these facts get into whether or not the jury instruction first was misleading second was it confusing and the third was a prejudicial well let me ask this the they the judge used the pattern instruction which has three blank spaces in the pattern has three incorrectly used to be yes i know understand but in nonetheless he used it and it has three mikes mason her right one would infer that the same thing should be inserted into each of those blank spaces but instead one time he inserted  was trafficking in technology primarily designed to circumvent technological measures designed to control access to work copyrighted under federal law and the other is violating the isn't the one that was inserted that was less favorable to you actually the law you know i'm not understanding why willful shouldn't in this context mean ignoring i mean traffic going in technology primarily designed to circumvent measures designed to control access to copyrights well you want exactly what the governments are even the governments are you and the other one is sufficient i understand that argument but i'm wondering about the question by why willful doesn't mean that and i took your briefs mainly to say well willful means more than that because because copyright violations have to be willful or have to be have to be knowing that it's a violation right around this my question makes sense it does and i think the reason why willful is it is interpreted and should be applied to include a knowledge that you violating law in this circumstance just as in every other area of copyright is because the law in this area is sometimes unsettled and almost always unclear for example your honor if i it since your time is out i just want to say assuming that you're right that that that's an impression statement or are not a complete statement of the law why isn't it weird by the fact that it's broccoli stated in the other two parts and when the other two blanks  well i guess the answer to that your honor is a jury is going to be faced with directly contradictory instructions in one case in one breath like you say you have to find a and in the minute a minute later you have to you say you have to find a and b that's not contradictory you clearly have to find a and b as the second time they said a and b that's not but that mischaracterizes the instruct the instruction says it's good enough if you find a but then the second breath is but remember you have to find b no it doesn't say that without respect it says that you know that you're selling these games councils and they are primarily designed to circumvent technological or masher rights so it's not just game consuls that it's what you're selling game console to people and you know that the primary reason for using them is to circumvent copyright law right that's what it's designed to circumvent technological measures in turn designed to control access to work be right under the circumvention of a technological measure designed to prevent access is a violation of copyright law if i purchase a game in in japan and use a device to access my lawfully purchased game i have not violated copyright law well but you've been by you've violated the d m c a because that's how it's the statute is written and i disagree with that because i would need to willfully home software developers they can be sued for in your act often through a home entertainment system the fact is there was no evidence in the case that this defendant was doing any of those things with the only evidence that was offered indicated that what he was doing was installing these chips into the video game for the purpose of having enabling people to play  d we believe the evidence showed that he knew exactly that that's what they were doing with it because in fact in one of the emails that was admitted into evidence the defendant tells the person at the other end of the email as far as what if you're talking about the instruction let me ask you this doesn't the pattern instructions at least in imply that those three dash lines in there are supposed to have the same words in them we're talking about ignoring the high probability that that may not have the the version with the spaces in but there are three blanks in there i believe in and it would make it would read nicely if you just had some factual statement blotched into each one of them but instead with the judge did was was one thing into one of them and violating the e c m a in the other to say well i believe in the middle one the way the instruction read was that if you're convinced that all three blanks not being in the first one even though it was in the second and third one is what makes the liberty construction incorrect i think that's his argument and i understand that at least admit of a reading that it's contemplated the same words are supposed to be inserted in all three but that's normally how it would work or am i reading the model wrong i mean you probably i don't use the model more than i do i mean what you know i don't i don't think you're reading you're wrong but i think you have to look at the auction in its totality can't you look at it oh i understand so your argument is if they stated it a little bit wrong in one of them the other to make up for yeah and the question is is was it way or was it clear to the jury what what the standard was and i think from reading this there was there was no confusion on on the part of the jury of what so the jury would know that that that they had to conclude that he knew that trafficking in technology primarily designed to circumvent technological measures etc it was criminal and because there were other instructions in that were given to them the finding the finding what the statute was as well i mean this this was not the only place that that language showed up there when typically when a court goes through the front of me but in the paragraph that says now i want to explain something to you about it then it's knowledge no one can avoid responsibility and then it's as if you are convinced that he deliberately ignored a high probably realty that he was and then attract the statutory  language tracking technology primarily designed to circumvent then you may find he he knew he was violating that the julian copyright act and then in the next sentence the next paragraph but to find this you must be convinced beyond a rogers i certainly will well i mean the first one is where the language from the from the statute is quoted in the second one is the words violating the d c m a right in the third one is violating the d c m a that's where the three blanks ok well i mean i think the focus of on all of the cases have looked at whether it's something that the the ordinary person or someone with really very little training or feel good and if if at the ninth circuit case that that was cited in godman case and i think peterson peterson involved someone who who self who leads had learned how to basically hack computers and did it so well they took over control of a radio station phone in gave up contest you know be the ball all over and win a new court and so what about cases where where there's some sort of sophisticated way schemes that are elaborate complicated i think that is that are those would those fit within the scheme i thought that within that enhancement but not i guess it would depend but here we're dealing with a technical field this is the taking a soldering iron and heater kit and from wires and knowing how to install that into delicate electronic equipment so that you don't get roy the original whitman but in fact alter it in a way that it that enables users violate a thing and there was testimony in this case that that what mr riker was doing was very sophisticated it was very difficult to do not the average joe on the street would do this in fact a lot of the people who would contact him were people who had tried to do it and failed and had damaged or had screwed up their video game and had to send it to him to sort of what's what standard lying reason for why the sophisticated means should give you a bigger s are people who i don't know i mean people who are who come from big families i mean it's got to be some reason this isn't just an arbitrary kind of enhancement or is that i don't or like logic for it well i'm sure there is logic and i apologize well be easier for us to know how far to take it if we knew why it was there well in any particular i think with some of them it's obvious i mean if you're talking about a lawyer or a doctor or those are room as well as a pilot so for example if you have someone who's running drugs and they're doing it in a car there's no special deal involved driving around down i seventy five but if you take that same person who's running drugs and their allies in iowa then  good example it's a clear example why should a pilot be punished more than drug no idea it's just arbitrary i don't believe no it's not very what's the what's the reason well i think that was a more culpable that's it i guess maybe having a senior moment but i do know i do you know i think it's hard question i'm asking you i'm just curious what it is because it would help me to figure out what the answer to that well i i think it's because where we're someone has either education training or wise but our defendant has well he paul that he and the defendant in the time that they were in high school would would build computers from brad they would buy motherboards they were firing them they would buy processors and they would literally build the future that's that's months months or years of hooli may be sufficient when you look at what it is that they're able to do and what they can do is something that everybody else for most everybody else cannot do then the special skill  would be sort of like you know very smart people who are very skilled should use those skills for the public good rather than hurt public or at least they shouldn't boycotts like something  that if your child or jelly on crack so that you have another copy and incidentally although you would be using a modified device designed to circumvent wanted a lawyer and found out and it was then it would be i think that's correct or if you would go if there was if there had been i'm not saying it should have happened here i'm just giving that as a right it's a year you can't say it's not a violation it says it's violation just has to be will right well actually i disagree with that i would i take the position my understanding of copyright law is that if you did what i described you back up your own game and then had a device used by it that you're not violating copyright law that that in fact it is traffic in your technology primarily designed to circumvent if you do that it's a violation of the law as long as willful i think if if there is an application of the statute to purely non copyright violations i think that there is over break issues that there's first amendment issues with you not mine overbred or no because that's not our case with regard to the our case i just want the court to be certain that there is in fact reason to believe that some of these people were using the i think if it goes back to the analogy of using it legally legally i apologize some of some of them  unquestionably running then that the issue then becomes and this was the central issue of trial because there were no statements by mr reichert or other evidence that he had gone to a lawyer or that he had been told don't do this you can't do this it's illegal no one ever told him that that's why deliberate ignorance or willful blindness came into issue that's why this is the crucial issue in the case that's why he knew he was in a gray area there were a lot there were a large your article suggesting that this could be legal that these selling these products might not be prohibited will you address built your honor with regard to your question of why it exists i don't know i don't i don't think it's a very i don't see any rationale for it but well let's try this that you say i guess you could say you have special knowledge then you don't have to resort to crime to  have a nice life go out and use your special knowledge for good or for yourself not so in that sense it's a little bit more culpable for somebody who has the ability to go out pilot a plane right to be piloting a plane for criminal purposes seems even less excusable somebody who doesn't have that alternative if it's something like that if it is then i'm not saying why why something the other arguments are rejected about three destruction so that he did will we do this assumption why wouldn't that be just as culpable looking at that way as somebody who taught himself how to fly a plane without ever getting a license or going to a why a plane if we got caught or if we thought we spent a year and taught ourselves but we have that what's the difference in the end i'm assuming in the question when i say what's the difference  programming of a computer i think it's a mixed question of law i think it in terms of when he makes findings of fact for example if he was to find that mr riker spent a year learning two years learning then i think certainly deference to that but in terms of a and i would literally i think deference with regard to any factual findings get not deference with regard to the application of the law so they'll be wide hear what we give them well the judge was pretty sparse in what he said i he indicated something right along the lines of what the government just indicated which is that it's a novel skill not many people can do it making a real good imo it's also a novel skill not a special skill changing a carburetor is not a lot of people can do that  statistically but you can learn what really out of time here tell me what portion o honor no and again i'm i am over time but it is definitely our position assuming that to be true that and and we're not arguing that it's not true that many people can't do this the issue is whether his  all certainly a and it's definitely not our argument that because he's not one of the enumerated six things that he doesn't qualify the argument is that he is first of all there's not enough there's no factual findings to support