Jeff Budden purchased and distributed over 100 devices that are primarily used to illegally gain access to satellite services. Budden appeals the district court's grant of summary judgment against him on a civil claim for violations of 47 U.S.C. § 605(e)(4), which prohibits distributing devices "knowing or having reason to know" that they are primarily of assistance in the unauthorized decryption of satellite services. We affirm.1

* DIRECTV, Inc. ("DTV") is a nationwide provider of direct-to-home satellite programming, including movie channels, sports, major cable networks, and local channels. DTV offers products on both a subscription and pay-per-view basis, and it encrypts—that is, digitally scrambles—its satellite broadcasts to guard against unauthorized access. A typical system consists of a small DTV-compatible satellite dish, a DTV receiver (also known as an "integrated receiver/decoder" or "IRD"), and a DTV access card. The dish connects to the receiver, which in turn connects to the user's television. A DTV access card, when inserted into the receiver, allows the receiver to decrypt the various channels or services that the user has purchased. A DTV access card is a smart card, similar in size and shape to a credit card, and also contains an embedded computer and memory.

Numerous "pirate access devices"2 have been developed to circumvent the necessity of a valid access card, thereby allowing users to illegally decrypt the DTV satellite signal and thus obtain DTV programming without purchasing it. Such piracy can take various forms, including modifying a valid access card or using a device to take the place of a valid access card.

In order to combat the proliferation of illegally modified access cards, DTV periodically sends out electronic countermeasures ("ECMs") embedded within its satellite transmissions. ECMs detect and disable modified access cards.3 However, as something of a "counter-countermeasure," a device called a "bootloader" is specifically designed to overcome the effects of an ECM, allowing individuals to continue using modified access cards to pirate DTV's transmissions. A bootloader is a printed circuit board that is inserted in place of a valid access card, and is used in conjunction with a modified access card. According to the affidavit of Bill Gatliff, on behalf of DTV, a bootloader is "solely designed for the purpose of circumventing DIRECTV's conditional access system, and thus is only of assistance in the unauthorized decryption of DIRECTV's satellite transmissions of television programming."

The late Hayden Black, a long-time acquaintance of Budden, asked Budden to help him purchase several bootloader devices from Mountain Electronics, an internet retailer. Budden agreed. Black directed Budden to the Mountain Electronics website and told him how to order the devices. Black gave Budden cash to pay for the order and asked Budden to have the devices shipped to Budden's address rather than to Black's home. Budden, using the alias Jeff Brown, placed the order on August 4, 2001. The shipment arrived COD. Budden paid for it with a money order—purchased with cash from Black—and accepted the package. Budden then passed the devices along to Black.

Over the course of the next several months, the process was repeated, as Black requested Budden's assistance in placing several additional orders. As to these subsequent orders, however, Budden insisted that Black himself obtain the money order. Between August 2001 and November 2001 Budden placed five orders with Mountain Electronics for a total of 115 bootloaders. Eventually, Budden became uncomfortable with the situation and told Black that he did not wish to place any additional orders. According to Budden, at the time of these events he had no knowledge of the nature of bootloaders; he did not read any description of a bootloader on the Mountain Electronics website and was concerned only with placing the orders; and Black had only indicated to him that the devices were "parts for satellites."

DTV brought several claims against Budden for piracy, only one of which is directly at issue here: a claim for violation of 47 U.S.C. § 605(e)(4).4 The district court held that the actions Budden admitted to constituted distribution of devices that Budden had reason to know were primarily for piracy, in violation of § 605(e)(4).5 Accordingly, the district court granted summary judgment to DTV on this claim, but did not explicitly address DTV's other claims. Budden timely appeals.

* We first examine our jurisdiction. DTV argues that, because the district court only disposed of DTV's § 605(e)(4) claim, the decision below was not final, and thus, in turn, we lack jurisdiction under 28 U.S.C. § 1291. We disagree.

It is true that the district court only explicitly addressed the § 605(e)(4) claim. It is also true that, in general, when a district court only addresses one claim or party in a multi-claim or multi-party situation, the judgment is not final unless the court abides by the provisions of Rule 54.6 Here, the district court did not, per Rule 54, "(1) expressly determine[] that there is no just reason for delay, and (2) expressly direct[] entry of a judgment."7

However, these facts fall by the wayside where all of the remaining claims have already been abandoned and the district court intended to dispose of all claims before it.8 In determining finality, we have "advocated a practical interpretation that looked to the intention of the district court" and held that "if the judgment reflects an intent to dispose of all issues before the district court, we will characterize that judgment as final."9 In National Association of Government Employees v. City Public Service Board we found that, to the extent the district court had not explicitly addressed certain claims, those claims had been abandoned.10 Specifically, "[i]n disposing of all Plaintiffs' other claims, therefore, the district court undoubtedly believed that it was disposing of the entire case before it," and it was "clear that no one associated with this case believed there to be a live [remaining] claim when judgment was entered."11 Similarly, in Vaughn v. Mobil Oil Exploration & Producing Southeast, Inc., we found a summary judgment to be final, holding that "[w]e can only construe appellee's failure to urge its claims before the district court as an intention to abandon that part of its case" and that the abandonment, therefore, left a final and appealable judgment without the aid of Rule 54(b).12

There are several indications here that DTV had abandoned all claims except for the § 605(e) claim upon which the district court ruled in its summary judgment motion, and that the district court intended to treat them as such. First, the district court had directed DTV to file a motion for summary judgment by July 16, 2004, if the parties did not settle. When DTV finally filed its summary judgment motion on July 21, 2004, it only addressed claims under § 605(e)(4), which suggests that the other claims were abandoned. Budden pointed this out in his response to DTV's motion for summary judgment and argued that all other claims had been abandoned.13 Second, although the district court's summary judgment opinion only addressed the "claims that Budden unlawfully distributed devices used to pirate its signal" as per § 605(e)(4), it entered a "Final Judgment" and closed the case.14 While Rule 54 indicates that the label "Final Judgment" would not necessarily make the judgment final when other live claims were present, such labeling does illuminate the district court's intent and, combined with the other indications, bolsters our conclusion that the district court treated the claims it disposed of as the only live claims. Third, in its brief, DTV acknowledges that "it was DIRECTV's intention to abandon all claims other than the claims brought under 47 U.S.C. § 605, on which the district court granted summary judgment."

In sum, it is clear that DTV abandoned all other claims, that the district court treated the § 605(e)(4) claim as the only remaining live claim, and that the judgment is final. Accordingly, we have jurisdiction.

Budden argues that DTV lacks standing because it is not a "person aggrieved" for purposes of bringing a § 605(e)(4) claim.15 We disagree.

Section 605(e)(4) provides in relevant part:

Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by [§ 605(a)] shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both.16

A civil action for violation of this section arises under § 605(e)(3)(A), which provides that "[a]ny person aggrieved by any violation of [§ 605(a)] or [§ 605(e)(4)] may bring a civil action in a United States district court or in any other court of competent jurisdiction."17 Looking solely to this provision, there is no contention that DTV would not have standing, given that it claims to be "aggrieved" by a distribution of pirate access devices in violation of § 605(e)(4).18

However, there is a twist. Section 605(d)(6) provides instruction with respect to the phrase "any person aggrieved" as follows:

[T]he term "any person aggrieved" shall include any person with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming, and, in the case of a violation of [§ 605(e)(4)], shall also include any person engaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable programming.19

Budden contends that § 605(d)(6) is an exhaustive list of those who have standing—that is, that this provision serves a limiting function. Budden then argues that neither clause of § 605(d)(6) applies because there is no showing here that there was an "intercepted communication" and because "satellite cable programming" does not include "direct-to-home satellite services" such as that of DTV.20 However, we are persuaded that the plain language of § 605(d)(6), in particular the phrase "shall include," does not limit the broad scope of § 605(e)(3)(A).

First, in the past, we have held that "[t]he word `includes' is usually a term of enlargement, and not of limitation."21 This largely tracks earlier Supreme Court expressions that "the term `including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle."22 Second, this interpretation fits with common dictionary definitions and examples. One version defines "include" as meaning "[t]o have as a part or member; be made up of, at least in part; contain" or "[t]o contain as a minor or secondary element."23 That dictionary provides a telling contrast between "include" and "comprise":

Include and comprise both take as their objects things or persons that are constituent parts. Comprise usually implies that all of the components are stated: The track meet comprises 15 events. . . . Include can be so used, but . . . more often implies an incomplete listing: The meet includes among its high points a return match between leading sprinters.24

A similar example in another dictionary indicates the non-exclusive nature of "include," as in the phrase "included a sum for tips in his estimate of expenses."25

Third, the Sixth Circuit has spoken to this issue and reasoned that "the plain language of the word `include' in § 605(d)(6) does not render the definition of a `person aggrieved' an exclusive one."26 A number of district courts have agreed.27 In DIRECTV, Inc. v. Hoverson, for example, the court held that § 605(d)(6) is not an exclusive list: "§ 605(d)(6) is not a true definition but, instead, merely is a description of two categories of persons who come within the broad term `any person aggrieved.'"28 In support of its position, the court contrasted the usage of the word "includes" in § 605(d)(6) with the word "means," which was used in describing other terms.29 Similarly, in DIRECTV, Inc. v. Boonstra, the court noted that "the statute does not limit the definition of `aggrieved' persons only to those expressly identified in the definition. Rather, the use of the word `include' is non-limiting and indicates that it is a non-exclusive description of potential plaintiffs."30

In sum, § 605(d)(6) does not serve the limiting function that Budden ascribes to it—that is, it is not an exhaustive list.31 DTV has standing to bring the § 605(e)(4) claim as a "person aggrieved."32

* We review a grant of summary judgment de novo, applying the same standard as the district court.33 "Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law."34 "An issue is material if its resolution could affect the outcome of the action."35 A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.36 When considering summary judgment evidence, we view all facts, and the inferences to be drawn from them, in the light most favorable to the nonmovant.37

Budden argues that the affidavit of James Whalen was not competent summary judgment evidence.38 According to his affidavit, Whalen, a Senior Director for DTV's Office of Signal Integrity, is "familiar with the usual and customary business practices involved in all aspects of DIRECTV's investigations of individuals and businesses suspected of illegally obtaining access to DIRECTV programming." He describes how, on December 11, 2001, and April 18, 2002, law enforcement officials, with the assistance of DTV personnel, executed search warrants upon the owners of Mountain Electronics. Whalen explains that Mountain Electronics was a "business enterprise focused on distributing electronic devices primarily designed for the surreptitious interception of satellite communications broadcast by DIRECTV," and that Mountain Electronics marketed its bootloaders as such. DTV uses this evidence to bolster its case that Budden knew or had reason to know that the devices were primarily for piracy, asserting that in affirmatively going to the Mountain Electronics website, Budden would have likely seen a description of the bootloader devices.

Budden attacks Whalen's statement by pointing out that, while it is a sworn affidavit, it does not state that his testimony is based on personal knowledge, nor does it aver that the statements therein are true and correct. These arguments are unavailing.

* First, it is true that Rule 56 requires that summary judgment affidavits be based on personal knowledge: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."39 Nonetheless, while an affidavit certainly can explicitly state that it is based on "personal knowledge,"40 there is no requirement for a set of magic words. As to competency, for example, we have held that in the summary judgment context, even when a party's response is a verified pleading that "does not affirmatively state in the document itself that the [persons] are competent to testify as to the facts to which they swore," it "does not necessarily doom their testimony."41

Similarly, the Fourth Circuit squarely rejected the argument that the "affidavits in the record are defective because they do not state that they are based on personal knowledge and do not affirmatively state that the affiants are competent to testify to the matters stated therein."42 The Ninth Circuit has also found it proper in the summary judgment context for district courts to rely on affidavits where the affiants' "personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore."43

Here, it is reasonably within Whalen's position—what one court has called his "sphere of responsibility"—as a Senior Director of Signal Integrity for DTV to be familiar with the Mountain Electronics investigation as described in his affidavit.44 We decline to find Whalen's affidavit deficient for lack of personal knowledge, as it is reasonably inferred.

Second, there is no requirement that sworn affidavits have a statement that the contents are "true and correct." That incantation is required for unsworn declarations. When confronted with an unsworn declaration, we have held that because the "affidavit is neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury," it was not proper summary judgment evidence.45 We explained:

It is a settled rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue precluding summary judgment. A statutory exception to this rule exists under 28 U.S.C. § 1746, which permits unsworn declarations to substitute for an affiant's oath if the statement contained therein is made "under penalty of perjury" and verified as "true and correct."46

Here, the lack of a recitation that the statement is "true and correct" poses no barrier for the Whalen affidavit. Budden's attack on the affidavit is without merit.

According to Budden, a reasonable finder of fact could conclude that DTV's evidence did not show that Budden distributed the bootloaders "knowing or having reason to know" the illicit nature thereof, in violation of § 605(e)(4). We again disagree.

While Budden contests whether he knew or had reason to know, he does not contest the actual nature of the bootloaders. On this latter point, the affidavits on behalf of DTV provide the only evidence, indicating that bootloaders are primarily used for piracy.47 In other words, while Budden's knowledge of bootloaders is contested, Budden does not dispute that bootloaders are devices that are "primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services."48 Budden also does not contest that his actions constitute "distribut[ion]" within the meaning of § 605(e)(4).

As to the knowledge requirement, Budden denies knowing the nature of the bootloaders prior to this suit. According to Budden, he did not read a description of the devices on the Mountain Electronics website, and his friend Black kept him in the dark.

Budden's attempt to create a fact issue as to his knowledge by relying on a conclusory and self-serving affidavit is on unsteady ground.49 However, even crediting Budden's testimony, as did the district court below, summary judgment in favor of DTV was still proper because a reasonable person had reason to know in the circumstances of this case that the bootloaders being purchased are devices primarily for piracy. That is, § 605(e)(4) does not demand actual knowledge; constructive knowledge will suffice.

Budden admitted that Black asked him to order a number of bootloader devices from the website of Mountain Electronics, and that Budden did so. DTV has also presented uncontroverted evidence that Mountain Electronics markets the bootloaders as pirate access devices. In total, Budden ordered (over the course of five separate orders), payed for (using Black's money), accepted shipment of, and distributed 115 bootloader devices. Budden's protestations of ignorance notwithstanding, whether or not he had actual knowledge, a person who undertakes such concerted and repeated efforts to secure and distribute these devices "ha[s] reason to know" what they are.50 Remaining willfully blind does not absolve Budden of the knowledge that a reasonable person would have acquired in these circumstances. In a different context the Supreme Court long ago remarked: "It should be remembered that a purchaser will have notice whenever he has the means of knowledge, although he may choose not to know; or, in other words, whenever it may fairly be presumed that he either knew or remained wilfully ignorant."51 Such sentiments echo true today.

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.

To summarize, we have jurisdiction to consider this appeal; DTV has standing as a "person aggrieved" to bring a claim for violation of § 605(e)(4); the Whalen affidavit is competent summary judgment evidence; and summary judgment in favor of DTV was proper.

AFFIRMED.