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Click here for the full text of this decision FACTS:DIRECTV Inc. (DTV) executed a writ of seizure at a mail shipping facility used by Card Unlooping, a seller of pirating devices. Records from the seizure showed that Marc Robson, a self-employed computer consultant, purchased a “PS2 Plus SU2 Unlooper” in March 2001. An unlooper can be used to alter or restore functionality to DTV access cards that have been disabled by misuse or by an “ECM,” which is a countermeasure to prevent piracy. An ECM is an embedded code within DTV’s satellite transmission that disables an unauthorized access card. Familiar with Robson’s name, DTV discovered a message posted in February 2001, to a Web site that acts as a clearinghouse of information on such things as pirated access to satellite transmission. The message was posted under the name “dobson,” a name registered to Robson’s wife, and stated that the poster was “putting together an emulator,” and needed advice on how to insert a particular chip. An emulator is a device that, when used in conjunction with a computer, software, a card reader to decode satellite transmission and a DTV receiver, can be used to intercept DTV’s programming without paying for it. Robson denied having an emulator, making the Web post or even visiting the Web site. Robson admitting to buying the unlooper, but he said he was using it to program smart cards for security purposes as part of his business. He claimed he threw the unlooper away after he couldn’t get it to work. DTV brought claims against Robson for the illegal interception of DTV”s satellite transmission, which would be a violation of 47 U.S.C. 605(a) and 18 U.S.C. 2511(1)(a), both of which carry criminal penalties. DTV also brought a claim for modification and assembly of pirate access devices in alleged violation of 47 U.S.C. 605(e)(4). The district court granted summary judgment in total to Robson. HOLDING:Affirmed in part; vacated in part; remanded in part. The court first explains the interplay between the various code sections at issue. Section 605(e)(3)(A) says that a violation of 605(a) or 605(e)(4), among others, provides a civil remedy to “any person aggrieved by” the violation. Similarly, a civil remedy for violation of 2511(1)(a) is found in 2520(a) and is available to “any person” whose wire communication is intercepted. The court next views the evidence to determine whether DTV established that Robson actually intercepted or otherwise unlawfully appropriated DTV”s transmissions under 605(a) and 2511(1)(a). The court finds that DTV has not presented any direct evidence that Robson engaged in illegal interception, or even if Robson had the DTV equipment necessary for interception, specifically a DTV access card, receiver and/or satellite dish. The court notes a “paucity” of guiding case law on whether circumstantial evidence can be sufficient to allow an inference that there has been actual interception. The court further notes that DTV’s evidence is largely confined to Robson’s purchase and possession of interception devices, rather than the use of those devices to intercept DTV’s transmission. The court observes that neither 605(a) nor 2511(1)(a) provides for a civil action for mere possession or purchase of a pirating device. Acknowledging that the “impulse to conclude from the possession or purchase of pirate access devices that [Robson] must have used them � why else would be buy them? � is a powerful one,” the court nonetheless finds that danger of indulging such an impulse would effectively create a de facto civil action for possession or purchase. The court further acknowledges that because Robson was “putting together” an emulator, and because he bought a second pirating device (the unlooper), the circumstantial evidence is strengthened, but there is still no evidence of actual interception. The court therefore joins those district courts that have held that some additional evidence beyond mere possession is necessary for a plaintiff to survive summary judgment on an interception claim. Summary judgment for Robson on these two claims was therefore appropriate. Summary judgment on the 605(e)(4) violation � modification and assembly of pirate access devices � was not appropriate, the court continues. According to DTV, Robson would be liable under this section for assembling the emulator and for using an unlooper to modify a DTV access card. The court notices that the district court found 605(e)(4) did not apply to individual users such as Robson, only to manufacturers and sellers. The court says nothing on the face of 605(e)(4) suggests such a limitation. “While such activities are, no doubt, commonly within the purview of a”manufacturer’ or”seller,’ there is no indication that the statute is intended to condone it when the actor is instead an”individual user.’” The court then says that nothing on the face of 605(e)(4) indicates that a required element for a violation of the section involves interception of a signal (unlike the two provisions above). Though the court finds that the district court was wrong in holding that individual users could not be liable under 605(e)(4), the court says it is not ruling on whether Robson”s actions actually constituted a violation. Such a decision is to be considered by the district court on remand. OPINION:Higginbotham, J.; Higginbotham, Barksdale and Clement, JJ.

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