12/21. The U.S. Court of Appeals (5thCir) issued its opinion [15 pages in PDF] in National Bi-Weekly v. Belo Corp., affirming the judgment of the District Court, which dismissed on statute of limitations grounds. The opinion addresses the application of a statute of limitations to a complaint alleging that an article published on the internet is tortious.

Introduction. The Court of Appeals held that for content on a free access web site, the time limitation begins to run at the time of original publication, and that the continued availability on the internet does not restart or interrupt the running of the time period.

However, this opinion applies only to free access web sites where the content alleged to be libelous is static. The Court of Appeals leaves uncertain the status of suits that involve content published in subscription web sites and closed networks. It also does not reach information that is acquired as a consequence of querying a database.

Also, while the plaintiff and defendants are located in places distant from each other, this opinion does not address venue or jurisdiction. This case addresses when internet based defamation takes place for the purpose of applying a statute of limitations. It does not address where internet based defamation takes place for the purpose of applying jurisdiction and venue rules.

Background. Scott Burns is a financial writer for the Dallas Morning News (DMN), which publishes a daily newspaper in the Dallas, Texas, area. The DMN also publishes a web site. The DMN is owned by Belo Corp.

Burns wrote, and the DMN published in its print edition and web site, a commentary on Nationwide Bi-Weekly Administration (NBWA). Burns' commentary was published in the print edition on July 29, 2003. The Court of Appeals wrote that the date of internet publication is not in the record; but it assumed it to be close to print publication.

Proceedings Below. On July 28, 2004, NBWA filed a complaint in state court in Ohio against Belo, the DMN and Burns alleging defamation, tortious interference with prospective business relations, and business disparagement.

The Dallas defendants removed the action to the U.S. District Court (SDOhio), which, due to lack of personal jurisdiction over the defendants, and pending motions, transferred the action to the U.S. District Court (NDTex).

On May 30, 2006, the Dallas defendants moved to dismiss. The District Court applied Texas law, including its statute of limitations. Texas statute provides a one year statute of limitations for libel claims. NBWA filed its original complaint just within one year of the publication of the commentary at issue.

However, NBWA did not obtain service for another ten months. The District Court held that as a result of this unexplained failure to exercise due diligence in serving the defendants, the filing of the complaint did not toll or interrupt the running of the one year statute of limitations.

The District Court in Dallas then dismissed the case for failure to state a claim, pursuant to Rule 12(b)(6), FRCP.

Court of Appeals. NBWA brought the present appeal. The Court of Appeals affirmed.

NBWA argued that because the commentary at issue was also published in the DMA web site, there was a republication of the commentary every time an internet user accessed it. NBWA argued that this starts the statute of limitations running again.

Texas case law provides that the one year limitations period begins to run when publication of the libelous statement is complete. This is also known as the single publication rule. However, Texas case law has not yet addressed the applicability of this rule in the context of continuous internet publication.

The Court of Appeals held that continued availability to the public of internet content does not continuously trigger a new limitations period in libel actions regarding that content.

However, the Court of Appeals suggested that a different rule may be warranted if the content is in a "restricted-access online database" that is not available to the public for free. The Court of Appeals noted that a Tennessee state court rejected the single publication rule in a libel suit regarding just such a restricted access web site.

The Court of Appeals declined to apply this Tennessee opinion, since "the article at issue here was undisputably posted on the website and made widely available to the public via the Internet", and no other court has followed the Tennessee opinion. It added that all courts that have addressed this factual scenario have held that "the single publication rule applies to information widely available on the Internet".

The Court of Appeals also wrote that "Perhaps more important than the similarities between print media and the Internet, strong policy considerations support application of the single publication rule to information publicly available on the Internet."

This opinion provides some relief, and certainty, for major newspapers that operate free public web sites. Yet, considerable uncertainty remains.

First, the opinion applies to "widely available" web sites. The opinion does not define the term widely. This leaves open an argument for plaintiffs to bring stale and/or repetitive actions for defamation involving free web sites. For example, what if the web site is free, but requires registration? What if the web site is free, but requires the use of software other than a browser?

Also, the opinion does not reach web sites that provide access only to those who purchase subscriptions. Nor does it does not reach closed networks. Nor does it reach content that is free, but displayed to a user as a result of queries to a database.

This case is Nationwide Bi-Weekly Administration Inc. v. Belo Corp., The Dallas Morning News, and Scott Burns, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 06-11283, an appeal from the U.S. District Court for the Northern District of Texas. Judge DeMoss wrote the opinion of the Court of Appeals, in which Judges Dennis and Owen joined.

12/28. The U.S. Court of Appeals (DCCir) issued its opinion [pages in PDF] in Biggerstaff v. FCC, rejecting two challenges related to the Federal Communications Commission's (FCC) junk fax rule, and its established business relationship (EBR) exception.

The FCC adopted this rule on April 5, 2006, and released it on April 6 in an order [50 pages in PDF] titled "Report and Order and Third Order on Reconsideration". It amends the FCC's junk fax rules, as required by the Junk Fax Prevention Act of 2005.

See also, S 714, the "Junk Fax Prevention Act of 2005", which was signed into law on July 11, 2005. It is now Public Law No. 109-21. And see, FCC release [PDF] and story titled "FCC Amends Junk Fax Rules" in TLJ Daily E-Mail Alert No. 1,345, April 7, 2006.

The 2006 order states that the rules changes "(1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited facsimile advertisements; (2) provide a definition of an EBR to be used in the context of unsolicited facsimile advertisements; (3) require the sender of a facsimile advertisement to provide specified notice and contact information on the facsimile that allows recipients to ``opt-out´´ of any future facsimile transmissions from the sender; and (4) specify the circumstances under which a request to ``opt-out´´ complies with the Act."

The present opinion rejects two consolidated petitions for review filed by Robert Biggerstaff and Douglas McKenna.

The Court of Appeals dismissed Biggerstaff's petition as untimely. That is, he did not challenge the final order, but rather a past administrative action that falls outside of the scope of the 2006 rulemaking.

The Court of Appeals dismissed McKenna's petition for lack of standing. That is, he did not challenge the final order, but rather the future effect of the wording.

The Court of Appeals wrote that "McKenna’s concern is that permissive wording in the Order wrongly implies that the JFPA grants statutory authority to send unsolicited faxes when an EBR only grants an exemption from federal liability under the statute. We must dismiss his petition because McKenna lacks standing. He proposes no substantive changes to the Order that will affect the legal rights of those who send unsolicited faxes and only speculates that textual revisions to the Order would reduce the number of unsolicited faxes he receives and thereby redress the harm he alleges."

This case is Robert Biggerstaff v. FCC and USA, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. Nos. 06-1191 and 06-1251, petitions for review. Judge Rogers wrote the opinion of the Court of Appeals, in which Judges Ginsburg and Griffith joined.

12/21. The U.S. Court of Appeals (5thCir) issued its opinion [14 pages in PDF] in Pierce v. U.S. Air Force, an action brought under the Privacy Act of 1974, which is codified at 5 U.S.C. § 552a(b). The Court of Appeals affirmed the District Court's summary judgment for the Air Force. One Air Force officer complained to the Air Force about alleged improprieties by other officers, including Pierce. The Air Force investigated, and prepared a "Report of Investigation" and "Summary of Report of Investigation" (SROI). The Court of Appeals held that the release to a newspaper of the SROI and cover letter did not violate Pierce's rights under the Privacy Act because these were not "records" contained within a "system of records" within the meaning of the Privacy Act. This case is Robert Earl Pierce v. Department of the U.S. Air Force, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 06-61050, an appeal from the U.S. District Court for the Southern District of Mississippi. Judge Eugene Davis wrote the opinion of the Court of Appeals, in which Judges Barksdale and Prado joined.

12/21. The U.S. Court of Appeals (5thCir) issued its opinion [11 pages in PDF] in Armour v. Knowles, a copyright infringement action involving music. Jennifer Armour wrote a song and created a demo tape. She registered a copyright for a capella version, and later an instrumental version, of her song. Her manager sent copies of the demo tape to people associated with Beyonce Knowles, a commercially successful singer. Soon after, Knowles recorded a song that Armour alleges infringed her copyright. The Court of Appeals affirmed the judgment of the District Court for Knowles based upon a finding of lack of substantial similarity of the two works. This case is Jennifer Armour v. Beyonce Knowles, et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 06-20934, an appeal from the U.S. District Court for the Southern District of Texas. The Court of Appeals affirmed in a per curiam opinion of Judges Higgambotham, Smith and Owen.

New Year's Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

Effective date of the Securities and Exchange Commission's (SEC) amendments to its proxy rules to require issuers and other soliciting persons to post their proxy materials on an internet web site, and to provide shareholders with a notice of the internet availability of the materials. See, notice in the Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42221-42239. See also, story titled "SEC Seeks Comments on Proposal to Mandate Internet Availability of Proxy Materials" in TLJ Daily E-Mail Alert No. 1,529, January 30, 2007.

Effective date of the Copyright Office's (CO) October 23, 2007, notice in the Federal Register that contains a final list of stations listed in affidavits sent to the CO in which the owner or licensee of the station attests that the station qualifies as a specialty station. The notice states that this list "shall be used to verify the specialty station status of those stations identified as such by cable systems on their semi-annual statements of account". See, Federal Register, October 23, 2007, Vol. 72, No. 204, at Pages 60029-60030, and 17 U.S.C. § 111.

Effective date of the Copyright Royalty Judge's final rule setting the royalty rates and terms for the use of sound recordings and the making of ephemeral phonorecords by preexisting subscription services for the period 2008 through 2012. See, notice in the Federal Register, December 19, 2007, Vol. 72, No. 243, at Pages 71795-71798.

No events.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will hold a meeting by teleconference. See, notice in the Federal Register, December 18, 2007, Vol. 72, No. 242, at Pages 71613-71614.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding ancillary terrestrial components (ATC), which allow mobile satellite service (MSS) operators to integrate terrestrial services into their satellite networks in order to augment coverage in areas where their satellite signals are largely unavailable due to blocking, by re-using their assigned MSS frequencies. This item is FCC 07-194 in IB Docket No. 07-253. See, notice in the Federal Register, November 19, 2007, Vol. 72, No. 222, at Pages 64979-64980.

No events.

8:30 AM - 6:00 PM. Day one of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). Section 508 of the Rehabilitation Act of 1973, as amended, provides at 29 U.S.C. § 794d that each federal agency "developing, procuring, maintaining, or using electronic and information technology" must provide comparable access to disabled federal employees, and to disabled members of the public who have access to and use of information and data of that agency; it further provides that each agency must comply with disability access regulations written by the ATBCB. For more information, contact Timothy Creagan at 202-272-0016 or creagan at access dash board dot gov. See, notice in the Federal Register, December 18, 2007, Vol. 72, No. 242, at Pages 71613-71614. Location: National Science Foundation (NSF), 4121 Wilson Boulevard, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier v. IXFS, a patent infringement case involving silicon semiconductor wafer technology, App. Ct. No. 2007-1063. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Finisar Corporation v. Directv Group, a patent infringement case, App. Ct. No. 2007-1023. This is an appeal from the U.S. District Court (EDTex), D.C. No. 1:05-CV-264. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sitrick v. Dreamworks, a patent infringement case, App. Ct. No. 2007-1174. Location: Courtroom 203, 717 Madison Place, NW.

CANCELLED. 12:00 NOON - 2:00 PM. The DC Bar Association will host a program titled "The Foreign Corrupt Practices Act: Part I". For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding allowing AM stations to use FM translator stations to rebroadcast the AM signal locally. This NPRM is FCC 07-144 in MB Docket No. 07-172. See, notice in the Federal Register, November 6, 2007, Vol. 72, No. 214, at Pages 62616-62622.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding hearing aids and wireless handsets. This item is FCC 07-192 in WT Docket No. 07-250. See, notice in the Federal Register, November 21, 2007, Vol. 72, No. 224, at Pages 65494-65508. See also, story titled "FCC Releases 2nd Report and Order and NPRM on Hearing Aids and Wireless Handsets" in TLJ Daily E-Mail Alert No. 1,672, November 8, 2007.

8:30 AM - 6:00 PM. Day two of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). See, notice in the Federal Register, December 18, 2007, Vol. 72, No. 242, at Pages 71613-71614. Location: National Science Foundation (NSF), 4121 Wilson Boulevard, Arlington, VA.

9:00 AM - 4:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will hold an open meeting. The agenda includes a discussion of the National Nanotechnology Initiative (NNI), a panel on research partnerships among universities and the private sector, and a panel on personalized medicine. See, PCAST agenda [PDF] and notice in the Federal Register, December 19, 2007, Vol. 72, No. 243, Page 71908-71909. Location: Room 100 at the Keck Center of the National Academies at 500 5th St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microprocessor Enhancement Corp. v. Texas Instruments, a patent infringement case involving the architecture of digital signal processing chips, App. Ct. No. 2007-1249. This is an appeal from the U.S. District Court (CDCal). Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Aristocrat Technologies Australia v. Multimedia Games, , App. Ct. No. 2007-1201, and Aristocrat Technologies Australia v. International Game Technology, App. Ct. No. 2007-1419, patent cases involving the authority of the U.S. Patent and Trademark Office (USPTO) to revive unintentionally late national stage applications. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in In Re Lee, App. Ct. No. 2007-1191. Location: Courtroom 203, 717 Madison Place, NW.

8:30 AM - 6:00 PM. Day three of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). See, notice in the Federal Register, December 18, 2007, Vol. 72, No. 242, at Pages 71613-71614. Location: National Science Foundation (NSF), 4121 Wilson Boulevard, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Dominant Semiconductor v. Osram, a patent infringement case, App. Ct. No. 2007-1456. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fuji America v. U.S., App. Ct. No. 2007-1653, an appeal from the Court of International Trade. Location: Courtroom 203, 717 Madison Place, NW

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Zenith Electronics v. PDI, App. Ct. No. 2007-1288. Location: Courtroom 203, 717 Madison Place, NW.

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