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Click here for the full text of this decision FACTS:Jeff Budden’s friend, Hayden Black (now deceased), asked Budden to order several “bootloader” devices from Mountain Electronics, an Internet retailer. A bootloader is a device that thwarts electronic countermeasures (ECMs) that DIRECTV Inc. (DTV) periodically sends out in its satellite transmissions to disable unauthorized access cards. According to Bill Gatliff of DTV, a bootloader is solely designed for circumventing DTV’s access system. Black gave Budden cash, and Budden bought a money order to pay for the order when it arrived COD. Budden also used an alias, “Jeff Brown,” when he placed the order. Budden accepted the package addressed to Jeff Brown, and he passed the package on to Black. This process was repeated five more times over the next three months, though Budden persuaded Black to buy the later money orders himself. In total, Budden ordered 115 bootloaders. Eventually, Budden became uncomfortable with the situation and told Black he did not want to place any future orders. DTV brought several claims for piracy against Budden, among them, a violation of 47 U.S.C. 605(e)(4) for modification and assembly of pirate access devices. Though Budden argued that 605(e)(4) did not apply to him, the district court granted summary judgment to DTV. HOLDING:Affirmed. The court confirms that it has jurisdiction over the case, noting that by the time of the summary judgment hearing, DTV had abandoned all but the 605(e)(4) claim against Budden. It is clear that the district court treated this claim as the only remaining live claim, the court finds, and that its judgment on the issue is final. The court then turns to Budden”s argument that DTV does not have standing to pursue the 605(e)(4) claim against him. A civil remedy is provided for “any person aggrieved,” Budden contends, and such a “person” does not include DTV. The court acknowledges a comment in 605(d)(6) that defines the phrase “any person aggrieved,” but the court rules that the language used in this provision is not an exhaustive one because it includes the particular phrase “shall include.” The court reminds Budden that the court has previously held that the word “includes” is usually a term of enlargement, not limitation. Common dictionary definitions of “include” are also expansive, not restrictive. The 6th U.S. Circuit Court of Appeals has specifically held that the word “include” in 605(d)(6) does not render the definition of “person aggrieved” an exclusive one, the court adds. Consequently, DTV has standing to bring the 605(e)(4) claim as a “person aggrieved.” The court next looks at the evidence to support Budden’s violation. The court first rejects Budden’s argument that an affidavit by James Whalen for DTV was not competent summary judgment evidence. Though Whalen’s affidavit does not say that it is based on personal knowledge, the court says the things Whalen discussed in his affidavit are reasonably within his position and “sphere of responsibility” at DTV. The court rejects Budden’s second argument, too, which is that Whalen’s affidavit did not state that its contents were “true and correct.” The court reminds Budden that the inclusion of a “true and correct” statement is for unsworn declarations, not sworn declarations such as this affidavit. Noting that 605(e)(4) does not require actual knowledge of the device”s use, as it does for pirating, the court finds that a reasonable person would have had reason to know in this case that the bootloaders being purchased are devices primary used for piracy. Though Budden insists that he was ignorant of the bootloaders’ purpose, the court also notes that remaining willfully blind does not absolve Budden of the knowledge that a reasonable person would have acquired in these circumstances. “The fact that Budden used an alias in placing the orders and eventually, after placing and distributing five orders of bootloaders, refused to place any more only strengthens our conclusion that he had reason to know the nature of the devices. In the present case, given the volume of devices ordered by Budden and the number of orders placed � even though relatively little time was expended � in combination with the other evidence mentioned, we are persuaded that a rational trier of fact could not find for Budden. Accordingly, the district court did not err in granting summary judgment in favor of DTV.” OPINION:Higginbotham, J.; Higginbotham, Barksdale and Clement, JJ.

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