8/22. The U.S. Court of Appeals (3rdCir) issued its opinion [12 pages in PDF] in Marten v. Godwin, a case regarding internet based personal jurisdiction. The Court of Appeals affirmed the District Court's dismissal of a defamation and Section 1983 complaint for lack of personal jurisdiction over the University of Kansas and its employees.

This opinion is a victory for free speech on the internet. This case does not involve the University of Kansas's speaking or publishing. It concerns its expulsion of an online student. However, the former student, Marten, alleged defamation, which is the claim most frequently asserted to suppress speech. The Court of Appeals issued an opinion that will make it difficult for those who seek to use defamation actions to silence online speech by hauling distant speakers into court in the 3rd Circuit.

Craig Marten, as a resident of the state of Pennsylvania, studied pharmacy via online courses offered by the University of Kansas (UK), which is located in the state of Kansas. He also communicated with his professors by phone and e-mail. The UK expelled Martin after accusing him of plagiarism on written assignments.

Marten filed a complaint in U.S. District Court (EDPenn) against the UK and several of its employees alleging defamation and violation of 42 U.S.C. § 1983 (state deprivation of Constitutional rights). The District Court granted summary judgment to the defendants based upon its lack of personal jurisdiction over the defendants.

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

The Court of Appeals applied precedent from the Supreme Court and the 3rd Circuit regarding the due process limitations upon the exercise of personal jurisdiction, general jurisdiction, and specific jurisdiction, and concluded that the District Court in Pennsylvania lacked personal jurisdiction over the out of state defendants.

The Court of Appeals began its analysis with the "minimum contacts" holding in International Shoe v. Washington, 326 U.S. 310 (1945).

It continued that there are two types of personal jurisdiction, general and specific. General jurisdiction, which Marten did not argue, "exists when a defendant has maintained systematic and continuous contacts with the forum state".

"Specific jurisdiction exists when the claim arises from or relates to conduct purposely directed at the forum state." The Court of Appeals wrote that the 3rd Circuit applies a three part analysis. First, the defendant must have purposefully directed his activities at the forum state. Second, the plaintiff’s claim must arise out of or relate to at least one of those specific activities. And third, courts may consider additional factors to ensure that the assertion of jurisdiction otherwise comports with fair play and substantial justice.

However, Marten did not argue that this three part analysis warrants a finding of personal jurisdiction. Rather, he argued an alternative basis for specific jurisdiction -- the Supreme Court's effects test holding in Calder v. Jones, 456 U.S. 783 (1984).

The Court of Appeals continued that the 3rd Circuit applies a three part test to apply the Calder effects test. "(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity."

The Court of Appeals focused on the "expressly aimed" prong of this test. It wrote, quoting from 3rd Circuit precedent, that "To establish that the defendant ``expressly aimed´´ his conduct, the plaintiff has to demonstrate ``the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.´´"

The Court of Appeals then concluded that under this test, "Marten has not shown with respect to either claim that defendants expressly aimed their conduct at Pennsylvania."

It elaborated that "Marten alleges defamation, but nothing in the record indicates that defendants made defamatory statements or sent defamatory material to anyone in Pennsylvania (other than, perhaps, Marten)." (Parentheses in original.)

"Here, even if we were to assume the truth of all of Marten’s allegations, and assume he felt the brunt of the harm in Pennsylvania, we still could not find jurisdiction. He failed to allege any specific facts showing a deliberate targeting of Pennsylvania."

The Court of Appeals then addressed Marten's Section 1983 retaliation claim. "That claim rests on his allegation that he was falsely accused of academic misconduct and consequentially expelled because he exercised his First Amendment rights in complaining about Regan. But even if we assume Marten felt the brunt of the harm in Pennsylvania, he has utterly failed to persuade us that defendants expressly aimed their allegedly retaliatory conduct at Pennsylvania." (Footnotes omitted.)

Hence, the Court of Appeals affirmed the District Court's judgment for the defendants. Marten might still pursue his claims in District Court in Kansas.

The Supreme Court has not yet addressed personal jurisdiction over out of state defendants based upon their internet activities. However, there are numerous lower court opinions. For a discussion of some cases involving personal jurisdiction in defamation cases, see story titled "2nd Circuit Addresses Personal Jurisdiction in Web Based Defamation Case" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007. For a discussion that also addresses other types of cases, see story titled "9th Circuit Holds that Operation of Passive Website Is Insufficient to Create Personal Jurisdiction in Trademark Case" in TLJ Daily E-Mail Alert No. 1,409, July 12, 2006.

This case is Craig Marten v. Harold Godwin, University of Kansas, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 05-5520, an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 03-cv-06734, Judge Petrese Tucker presiding. Judge Chagares wrote the opinion of the Court of Appeals, in which Judges Sloviter and Greenberg joined.

8/15. President Bush issued another notice in a series of annual notices to maintain in effect the export regulations of the Department of Commerce's (DOC) Bureau of Industry and Security (BIS). These regulations implement the Export Administration Act of 1979, which expired in 2001.

These regulations affect, among other things, exports and "deemed exports" of dual use items, such as computers, software, and encryption products. These regulations also regulate some employment practices.

The President's notice states that "On August 17, 2001, consistent with the authority provided to me under the International Emergency Economic Powers Act (50 U.S.C. 170l et seq.), I issued Executive Order 13222. In that order, I declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States in light of the expiration of the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.). Because the Export Administration Act has not been renewed by the Congress, the national emergency declared on August 17, 2001, must continue in effect beyond August 17, 2007. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13222." (Parentheses in original.)

See also, letters sent to the Speaker of the House and the President of the Senate, and notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Pages 46135-46137.

On August 16, 2007, the BIS's Deemed Export Advisory Committee announced that it will meet on September 10, 2007, from 9:00 AM to 12:00 NOON at an undisclosed location. Friday, August 24 at 5:00 PM is the deadline to submit requests to make presentations at this meeting. Monday, September 3 at 5:00 PM is the deadline to submit prepared testimony. See, notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035.

8/21. The Institute for Policy Innovation (IPI) released a paper [32 pages in PDF] titled "The True Cost of Sound Recording Piracy to the U.S. Economy". The author is Stephen Siwek of Economists Incorporated. He finds that "As a consequence of global and U.S.-based piracy of sound recordings, the U.S. economy loses $12.5 billion in total output annually." In addition, "the U.S. economy loses 71,060 jobs", "U.S. workers lose $2.7 billion in earnings annually", and "federal, state and local governments lose a minimum of $422 million in tax revenues annually".

8/16. The Recording Industry Association of America (RIAA) announced that it has sent another round of pre-litigation letters to 58 schools regarding illegal file trafficking on college campuses. The RIAA stated in a release that "Each pre-litigation settlement letter informs the school of a forthcoming copyright infringement suit against one of its students or personnel and requests that university administrators forward that letter to the appropriate network user." The RIAA states that it sent letters to Columbia, Duke, Emory, Haverford, Oberlin, Rice, Swarthmore, Tulane, and other schools.

8/9. The U.S. Court of Appeals (1stCir) issued its opinion in Mag Jewelry v. Cherokee, a copyright case involving costume jewelry. The Court of Appeals affirmed the District Court's judgment for the defendants on the infringement issue. However, the Court of Appeals reversed the District Court's refusal to award attorneys fees to the defendants. It held that defendants may recover attorneys fees in a copyright infringement action where the claim was tenuous, the plaintiff's theory shifted during litigation, and the plaintiff prolonged litigation. This case is Mag Jewelry Company, Inc. v. Cherokee Company, Target Corporation, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 06-1556 and 06-2127, appeals from the U.S. District Court for the District of Rhode Island, Judge Ernest Torres presiding.

8/8. The Center for Democracy and Technology (CDT) released a paper [6 pages in PDF] titled "Search Privacy Practices: A Work in Progress" that compares the privacy practices of Google, Microsoft, Yahoo, AOL, and other search providers. It states that "Many of the top Internet search companies have recently announced new privacy initiatives aimed at giving users greater control over data about their search activities or stronger assurances that it is being handled appropriately." However, it adds that "No amount of self-regulation in the search privacy space can replace the need for a comprehensive federal privacy law to protect consumers from bad actors. With consumers sharing more data than ever before online, the time has come to harmonize our nation’s privacy laws into a simple, flexible framework."

The House will not meet due to the August District Work Period. See, House 2007 calendar. The House will next meet at 2:00 PM on September 4, 2007.

The Senate will not meet due to the August District Work Period. The Senate will next meet at 1:00 PM on September 4. See, Senate 2007 calendar.

TIME CHANGE. 1:00 PM. The Department of Commerce's (DOC) International Trade Administration's (ITA) President's Export Council will meet by teleconference. See, original notice in the Federal Register, August 13, 2007, Vol. 72, No. 155, at Pages 45224, and revised notice in the Federal Register, August 21, 2007, Vol. 72, No. 161, at Page 46607.

Deadline to submit comments to the President's National Security Telecommunications Advisory Committee (NSTAC) following its partially closed meeting of August 16, 2007, regarding the NSTAC's International Task Force (ITF) Report and network security and the global communications environment. See, notice in the Federal Register: July 31, 2007, Vol. 72, No. 146, at Page 41771.

5:00 PM. Deadline to submit requests to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) to speak at the DEAC's meeting of September 10, 2007. See, notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035.

Deadline to submit nominations for appointments to its Federal Reserve Board's (FRB) Consumer Advisory Council. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding proposed rules to ensure bidirectional compatibility of cable television systems and consumer electronics equipment. The NPRM also seeks comment on whether these rules should apply to non-cable Multichannel Video Programming Distributors (MVPDs) and whether there are technological solutions that are network agnostic and deployable across all MVPD platforms, including DBS, IP, and QAM/IP. The FCC adopted this item on June 27, 2007, and released the text on June 29, 2007. It is FCC 07-120 in CS Docket No. 97-80 and PP Docket No. 00-67. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40818-40824.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) notice requesting comments to refresh the record on the issues raised by the FCC's 2004 Further Notice of Proposed Rulemaking (NPRM) regarding its universal service subsidy programs titled "Lifeline" and "Linkup". The WCB issued its notice on March 12, 2007. It is DA 07-1241. The FCC issued its NPRM on June 22, 2004, in WC Docket No. 03-109. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40816-40818.

10:00 AM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its Special 301 Out-of-Cycle Review of the Russian Federation. This is a review of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37272-37273.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its XM Sirius merger review proceeding that seeks comment on whether the language in an earlier order barring the merger constitutes a binding FCC rule, and if so, whether the FCC should waive, modify, or repeal the prohibition if the FCC determines that the proposed merger would serve the public interest. See, notice in the Federal Register, July 12, 2007, Vol. 72, Number 133, at Pages 38055-38056.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will hold the second of two meetings by teleconference regarding "revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology". The deadline to register is August 22, 2007. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Pages 43211-43212. Location: Suite 1000, 1331 F St.,  NW.

Day one of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. August 21 is the deadline to register. The price to attend is $375. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "What You Need to Know About Spam Cases: Litigation and Anti-Spam Regulations". The speakers will be Jason Levine (McDermott Will & Emery) and Yaron Dori (Hogan & Hartson). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request to refresh the record of its 2001 Further Notice of Proposed Rulemaking (FNPRM) regarding "the status of the market for the provision of telecommunications services in Multiple Tenant Environments (MTEs), and on whether the prohibition on exclusive access contracts in commercial MTEs should be extended to residential MTEs". See, notice in the Federal Register, May 30, 2007, Vol. 72, No. 103, at Pages 29928-29929. This item is DA 07-1485 WT Docket No. 99-217 and CC Docket No. 96-98.

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding rule changes related to the DTV transition. The FCC adopted this NPRM on April 25, 2007, and released the text [93 pages in PDF] on May 18, 2007. It is FCC 07-70 in MB Docket No. 07-91. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37309-37344, and Public Notice [PDF] (DA 07-3518) extending deadlines.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2007 David Carney, dba Tech Law Journal. All rights reserved.