foundation it's also unusual because this case is about the meaning of two words but the parties don't agree on which two words they are we think this case is about the words any person as they appear at the beginning of forty seven u zero five efore the statute at issue in this case which makes it illegal to do seven things to manufacture sell distribute import export assemble or modify devices knowing or having reason to know that those six o five you four wrong judge armstrong got it wrong in oliver because she said directv had to show that the defendants had sold or distributed devices reading out completely the other five verbs i just mentioned and disregarding the  to watch direct t v without authorization i'll talk about that in greater detail in a minute the legal error is that if someone does assemble and modify the device and then uses the device to watch direct t v without paying direct t v someone has violated both of those am an individual subscribes to direct t v s basic service pays twenty dollars a month or whatever and has a car that authorizes just to receive  right now there isn't piracy of directv fortunately but you can get a pretty modified access card you can buy from somebody who has used a device a loader or a programmer to program these access cards in order to unlock all the channels a pirate can get and program it so that it can access all of directv channels direct t v then to text that from time to time they detect the use of an illegally programmed card and they send an electronic countermeasure to disable the car then  you have to have additional receiver in this case there's been no first of all of the fault that but these were subscribers of directv style they had a dish and a receiver and there's no claim below that they didn't have the necessary equipment to take a pirate contention which they default statute is not designed for end users or it was something else i think we'll just judge bryer went on the fact that there needed to be a dichotomy between six o five and six o five efore and found that six o five e was not designed for individual users the exact opposite of what the fifth circuit found and i what i think is he's right there is a dichotomy but it's not the dichotomy key points out the distinction is between those who make or distribute devices that's only for violations and those who use devices that's a six o five a violation and so there is a difference between the two forms of conduct but it's the make or use and what the defendants did here was they made it device and why it makes sense that  be punished differently because that type of piracy is much more pernicious and robust than someone who just goes on the internet buys the access card and sticks into the receiver that person is out of business as soon as directv sends electronic countermeasure to  sable the car right but the person who has the device and the looper can not only make these devices for others but when directly disables their card they can put it back in reprogram it and put it back into their machine or watch t v again so direct i'm sorry and we're not here today to say that this court should base its opinion on that we think that six o five efore is plainly clear that even if they modified their device for their own personal use that is a violation of before that is different conduct by and design then just using a piracy device they don't have to acquire the skills in the tools and cause directv the hardship of reprogramming reprogramming their cards the pirate they could commit the simple violation of six or five a by buying one of these modif is the argument they're making that there's this implied limitation for commercial use or for assisting others those terms are in six o five in different places that is it makes no sense to read those terms a implied lee in six zero five the four when when congress wanted to condition something on private financial gain or commercial use it did so if you look at forty seven u s c six o five each to when you look at the three congress enhanced the penalties when other thing i want to talk about is they suggest that we should use this no she tore up so she is principle to interpret assemble and modify the way the other words in the statute have some sort of a commercial component think that's absolutely the wrong thing to do so wrong thing to do contradicts the purpose of the one thousand eight amendments because in one thousand nine hundred eight congress wanted to give prosecutors and civil plaintiffs like directv additional legal tools to bring piracy under control congress found piracy was rampant among commercial users and among private home users so they added the words assemble and modify to the statute and if there were some sort of commercial connotation you wouldn't need them assembly for commercial foundation of slane how robes and could possibly can be consistent with the district court's decision in this case because robes and was faced with the question of whether there was an implied limitation in six zero five four that required some commercial component and the fifth circuit said there absolutely wasn't that there is no indication that congress intended to condone any of the seven verbs that i mentioned before when they're engaged in via individual user so i'm interested in hearing that because i think the concerts in the fourth circuit have really addressed this issue when the one other point and then say the rest of my time for a bottle of that is the fs says they're here because they're concerned about the principles and the effect this case might have on legitimate scientists in the scientific community and researchers and i think there is no real concern there this statute has a knowledge dollars that you can't just inadvertently create a device that's primarily of assistance in the description of direct t v and had no reason to know you've done that i mean this doesn't affect the scientific community this is a very narrow statute and as judge prior the finding of liability for six or five here against these defendants what we're really concerned about is the definition and construction of six of five for two reasons the first is that we don't believe that congress meant to encompass as in other words what role you play in a satellite piracy scheme and decide penalties that are appropriate for that scheme second and this is going to councils point about security researchers what we need here in terms of the danger this poses to security researchers  computer sciences is there are researchers who study hacking devices devices that intercept now other words there are scientists and researchers in consultants who look at and they want to study them to understand it's like if you want to build a better mouse trap you have to look at the old traps and see how the mouse gets out so you can build a better one that might prevent the mouse from escaping there are security researchers to look at these devices progress and put them in test them and if all it takes is a modification seems gives permission to do the testing in the modification and potentially the assembly but let's say you're a competitor and you want to understand directv system a little better and you want to hire some to look at it or you're just a general researcher at a university i think those before against researchers now that we know your honor we're concerned about the broader implications so as to the statutory construction argument we have no issue with any person including an individual i think that is exactly what the ropes and court addressed i think any person could include individual could include a commercial entity i think you have to look beyond those two words to get the whole sentence you need for which is what kind of people in terms of what behavior they are conducting they are people who  assemble modify manufacture and those are the words that we believe are ambiguous and others was it means to assemble or modify and i think that a simple example is if you were to look at the word assemble i could get away and i could buy something i might you know good in my computer and modify an icon on the desktop so that it's a cartoon character i might modify you know something by putting a sticker on it or i might go to a mechanic and have them modify my engine and i think that there are two qualit occasion the question for me is what definition did congress and ten when they created the statute it was do they intend to create every single possible potential want to or did they really intend to certain category of behavior and i think the penalty structures actually go straight to that question of what kind of modification they're talking about and if the penalty structures are just going to personally read the structure of the statute the legislative him stree and the penalty provisions and also section if they wanted but no congress took the section which was already dealing with distributors and many factors and sellers and said ok these are two words that kind of fill out the potential activities that these kinds of actors could engage in and in  interceptions and that's really the clear line that i want to try here i know counsel took issue with the word commercial but really i think when you look at specially just prior suspicion what he's talking about here is the role you play not that you're a person or not a person and what we're talking about here are you simply taking the minimum necessary steps to facilitate your own interception essentially sixty five days targeting or are you facilitating or sustaining others in other words helping multiple people potentially intercept and that's where the penalt really comes in if you're just doing it for yourself ten thousand dollars if you're assisting other people on a broad scale then one hundred thousand dollars is potentially the penalty there and i think that makes sense in terms of how congress is looking at this if you look at  but congress kept the structure the same in other words the provisions that senator packwood was talking about that were to addressed assistance to other people that's the provision that congress  r that that sort of thinking doesn't really apply to this particular statute because or is the only sensible way the congress could have spell this out in order to actually find anyone liable oh i just wanted to make but it doesn't add to the weight of potential conflicts but as i said i don't believe that robson in a row if there is a conflict with the circuit i believe it was addressing whether as your honor points out whether categorically you can exclude individuals and we don't try and push that line here we don't think if an individual does facilitate the interception of others let's say they have their own home basement business where they are making and selling these devices or modifying them for people as they come in and pay the money that i think would qualify but we're talking about here are the minimum know and but but if you look at the range the range for actual interception i believe is a thousand to ten thousand in the range for efore is ten thousand two hundred thousand so again congress is pretty clear that these are further questions here from directv why do you need both a and b for we need a and e for because a goes after the active interception and people who modify and assemble don't always intercept themselves someone could be modifying devices in their house and it could be distributed to others but we also need it because people who are modifying for their own use cause directv so much more aggravation and expenditure of time and effort than somebody who just sticks a card in their device it is we are not playing the second card into the device is a violation of the four were not and were were also pointing out that it is not true that is the minimum necessary steps to pirate directv to buy an on looper and buy and a loader and modify nexus card that's just not right i have been litigating directv cases for six years i have twelve case in front of judge crater since many of them have been about people who just bought devices off the internet so you can just buy one of these cards not now because there's no piracy but that in two thousand and stick it into your receiver that's the minimum necessary steps that doesn't violate before this is more than minimum necessity trying to promote certainly not certainly  not the in order to get to any of the statutory interpretation argument you've got to find an ambiguous word none of these words are ambiguous all of the examples on what modify means are to change or to alter the only ones he came up with  you could modify a policy position by making it less extreme or a adjective can modify a noun we're not talking about a particle of speech we're not talking about a policy position we're talking about a device it's so clear that in their own grief the e s f on page nine  software has an interface that allows the user to easily modify the directv access card they can't even use a better word in a brief where they're complaining that modify isn't big u s there's no ambiguity here and the reason that they can't cite legislative history is because all of the legislative history isn't directives favor congress wanted to do this to supports your position it's the points where the more congress said that piracy was rampant among both commercial users and home users that was a rational policy choice so this kind of made a different policy choice and said you have to violate you for you have to assist others to violate a you know your own use that's not the choice they made and they can go back and make that if this turns out to be a problem it ha that's six o five that's the choice they made and any discovery done in this case there was an evidentiary hearing before judge pryor the transcript of which was attached to our civil dokken statement but since the other side didn't participate at all there was no discovery complaint now if the allegations in the complaint is the allegations that appear in count three if that they actively programmed and reprogrammed direct t v access cards and designed electronic systems legislative history to support it and no basis to disagree with what the fourth and fifth circuit did when they looked at the same issue ok thank you both for your arguments you just argued will be submitted her decision will proceed to the last case on the argument which is st paul