Coxcom, intent and summary judgment


Here’s a First Circuit decision in which I’m sure the result was right; I’m just wondering whether they cut a corner to get there:

As the facts are set forth in the opinion, the defendants violated the Cable Communications Policy Act of 1984 when they sold cable filters that allow bypass of paying pay per view charges.  The opinion notes that the filters aren’t illegal and they have other innocuous uses.  The defendants sold the filters with an instruction sheet that indicated how the bypass would occur, then said that they were not suggesting or implying that anyone actually do such a thing.  The defendants were also recorded as explaining how the filters worked, that they would only hold a finite amount of pay per view charges, and only worked for pay per view and not HBO or show time.

The statute prohibits assistance in intercepting or receiving service, including the manufacture or distribution of equipment "intended" for unauthorized reception.  Intent is understood under the statute to mean "specific knowledge" of the planned illegal use. The defendants argued that they didn’t intend the illegal use. 

The First Circuit upheld summary judgment in favor of the plaintiffs.  The decision states that the necessary intent was "apparent" for two reasons.  First, the instructions for the filter operation "suggest" knowledge of planned illegal use.  Second, the filters actually did block the billing data.  "Based on this evidence," the Court of Appeals said that it agreed with the district court.   

Now it seems pretty clear what was going on, and justice prevailed.  Also, if you read the decision as a whole, the defendants kept waiving arguments and their right to a jury trial and so the results may be a product of less than stellar and robust defense.  But technically speaking, should this really have been decided on a summary judgment?

I can see a summary judgment in favor of a defendant when the issue is disputed intent, particularly if the plaintiff’s burden is higher than preponderance (which doesn’t appear to be the case here).  If the plaintiff has the burden, particularly if it’s a strong one (like clear and convincing evidence), and there’s an honest explanation for the defendant’s conduct, then I can see a court saying that the plaintiff isn’t going to be able to meet its burden. 

But can you ever really grant a summary judgment in favor of a plaintiff when the defendant’s credibility is at issue?  Maybe the "specific knowledge" definition here means that subjective intent isn’t an element.  You don’t need to want the buyers to use the product illegally; you just need to know that they are going to do it.  So putting disclaimers in your sales pitch isn’t enough to insulate you; giving customer the directions on how to employ the product illegally is enough.  But still, doesn’t the knowledge requiement imply some subjectivity?  What if the defendant truly is the numbest person on the planet?  In the end, don’t we have trials so someone can look at the defendant and say "no, you aren’t that dumb"? 

Nothing in the opinion suggests that the defendants provided any explanation as to why they would be handing out instructions on how to use the filters illegally while at the same time thinking that their customers weren’t going to actually use them as instructed.  And there’s no evidence of any defendant communications relating to any legal use for the product to the customers.  The lack of any reasonable explanation other than knowledge is probably enough.  And it certainly saves time and money not to have the trial that would have the inevitable same result.

But, still, to resolve a state of mind issue in favor of a plaintiff on a summary ruling gives me pause.  While there is no reasonable explanation other than a violation of the statute, individual humans can be unreasonable.  If an individual defendant really was dropped on his head as a child and had no clue, and specific knowledge is an element of the cause of action, can we really say for certainty the plaintiff should win?  As a matter of law?