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A three-judge panel of the 5th U.S. Circuit Court of Appeals, sitting in Houston for four days beginning on March 7, heard a lot about spam e-mails and the “American Idol” television program during oral arguments in two of the more interesting appeals on the week’s docket. The 5th Circuit panel, which includes judges W. Eugene Davis, Harold R. DeMoss Jr. and Jerry E. Smith, traveled to Houston as part of its regular on-the-road program to hear arguments in White Buffalo Ventures LLC v. University of Texas at Austin, Harry T. Keane Jr. v. Fox TV Stations Inc., et al., and 12 more cases. The panel held court at the South Texas College of Law on March 7 and 8 and at the Bob Casey Federal Building for the next two days. Geralyn Maher, the calendaring/screening supervisor for the New Orleans-based 5th Circuit, says the court regularly travels around the district, at the discretion of the panel members. It’s done to make it more convenient for law students and lawyers to attend arguments, she says. In Houston, the panel members got a dose of pop culture when listening to arguments on March 7 and 8. The spam-related litigation was filed after the University of Texas blocked e-mails from an online dating service catering to current and former UT students. After the University of Texas received complaints in 2003 from some users of its e-mail system about messages sent by Longhorn Singles, UT set up a filter to block all e-mails from LonghornSingles.com. That didn’t sit well with White Buffalo Ventures, the Austin company that operates Longhorn Singles, which alleges in its brief to the 5th Circuit that the e-mail messages should not be blocked, because they meet all requirements of commercial speech in the CAN-SPAM Act, the federal law designed to regulate spam. White Buffalo filed a federal suit against UT, alleging the university’s efforts to block its messages violated its First Amendment rights, but, in May 2003, U.S. District Sam Sparks of Austin granted a summary judgment in UT’s favor, ruling the university’s anti-spam policy is reasonable, and it is not pre-empted by the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 15 U.S.C. 7701-7713CAN-SPAM Act. Cut off from its customers and potential customers who use UT e-mail addresses, White Buffalo appealed. On March 8, the 5th Circuit heard oral arguments in that appeal, which will test the reach of the CAN-SPAM Act, and decide if UT’s anti-spam policy violates White Buffalo’s First Amendment rights. “The big question is: ‘Can the university block all commercial messages?’” White Buffalo’s lawyer, Brad L. Armstrong, told a three-judge panel of the 5th Circuit during oral arguments on March 8. Armstrong, a lawyer in Austin who is also chief executive officer of White Buffalo, said there is a difference between commercial messages from Longhorn Singles and illegal spam. He says the e-mails from Longhorn Singles comply with Federal Trade Commission requirements and follow rules in the CAN-SPAM Act, adding that the messages cannot be equated to spam for “breast implants for men and penile implants for women.” “They are trying to throw the baby out with the bath water,”Armstrong told the judges in describing UT’s decision to block e-mails from Longhorn Singles. He told the 5th Circuit panel that the university received 15 complaints after his company sent e-mails to about 59,000 users of utexas.edu e-mail in April 2003. But, Armstrong noted, 12 percent of the recipients chose to check out Longhorn Singles’ Web site, www.longhornsingles.com. In May 2003, the university blocked all incoming and outgoing messages from the site. Sean Jordan, an assistant solicitor general representing UT, told the panel that UT did not violate White Buffalo’s First Amendment rights by using its anti-spam policy to block e-mails from Longhorn Singles. Jordan also told the panel the university’s e-mail system is a closed network that exists to support academics and research, and any spam directed at utexas.edu addresses is subject to blocking if the university receives complaints or if the e-mail triggers spam monitors. He disagreed with Armstrong’s argument that Longhorn Singles’ messages should not be blocked on the ground that they meet the commercial speech requirements outlined in Central Hudson Gas & Electric Corp. v. Public Service Commission, a 1980 U.S. Supreme Court opinion. He also said Sparks’ ruling properly found that the university’s anti-spam policy was not pre-empted by CAN-SPAM. He said CAN-SPAM regulates the sending of e-mail, and UT’s anti-spam policy regulates the receipt of messages. “What UT is doing is protecting itself,” Jordan told the 5th Circuit panel. “UT is using a filter — a self-help measure if you will — to protect itself from a deluge of spam.” “White Buffalo can send a message to anyone they want. We are saying we don’t have to receive it,” Jordan told the court. Jordan said UT has blocked messages from more than 1,500 companies, and White Buffalo is not being singled out. AN IDOL CLAIM In Keane, the 5th Circuit judges heard from a Dallas television producer who wants the 5th Circuit to give him the chance to prove in court he has rights to the “American Idol” talent-show program and should be compensated for it. Keane alleges in his brief to the 5th Circuit that he came up with the idea for a national television competition that would be named “Ultimate Starsearch,” “American Idol” or “American Superstar,” would appear on television two or three times a week for 13 weeks, would feature Elvis impersonators or young adults in a talent competition, would have a panel of judges selecting the finalists, and the judges and the public would vote on the individuals who would move on to the next round. Keane alleges that in May 1998 he sent a letter to a number of production companies, including a company in the United Kingdom owned by producer Simon Fuller, disclosing the concept and seeking sponsorship. In May 2003, Keane sued Fox Television and others alleging copyright infringement and other causes of action. In a second amended complaint, Keane alleged violations of the Lanham Trademark Act, 15 U.S.C. 1125(a), trademark infringement, breach of implied contract, misappropriation of idea/trade secret and other causes of action. In January 2004, U.S. District Judge Sim Lake of Houston granted Fox Television’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), finding that Keane did not state a claim upon which relief could be granted that was not pre-empted by the Copyright Act. Lake also subsequently ordered Keane to pay the defendants nearly $130,000 in attorneys’ fees. Keane appealed to the 5th Circuit asking the court to reverse the judgment of the trial court, vacate the attorneys’ fees award and remand his suit for a trial on the merits. Keane’s appellate lawyer, Daryl Moore of Houston, told the 5th Circuit panel on March 7 that Lake did not consider exhibits Keane filed with his pleadings when dismissing the suit under 12(b)(6). “In this case, the trial court refused to accept well-pled facts as true,” Moore, a partner in Storey, Moore & McCally, told the court. Moore noted one exhibit in particular — the letter Keane sent in 1998 to potential “sponsors” of the program. Moore said recipients included a company owned by Fuller, the British producer who, according to Keane’s brief, claims to be a co-creator of the “Pop Idol” television program that aired on British television in 2001. As alleged in Keane’s brief, Fuller sold the format of “Pop Idol” in the United States, and Keane alleged that people who helped him with his talent-show project or invested in it thought “American Idol” was his show when it aired on Fox Television in the United States. In response to a question from DeMoss, Moore said nothing in Keane’s complaint indicates that Fox Television responded to Keane’s solicitation letters for his proposed talent-show program. But Moore added that there is, nevertheless, a “sufficient basis to go forward with an implied contract claim.” “In this case, he had asserted that industry custom shows he would be paid if Fox accepted his idea and used it,” Moore argued. Fox Television’s attorney, Tom Van Arsdel, a partner in Winstead Sechrest & Minick in Houston, told the panel that Keane doesn’t have a claim. “Quite simply, this is a case where the plaintiff has pled himself out of court,” said Van Arsdel, who also represents defendants Fremantle-Media North America Inc. and Simon Cowell, one of the judges on “American Idol.” Van Arsdel said Keane did mail that solicitation packet in 1998, but the letter “blurts out” the “American Idol” idea before asking for sponsorship. And while Keane asserts that industry custom would support a claim for compensation for the “American Idol” concept, Van Arsdel said that presupposes a history of prior dealings between the two parties. “Here it’s apparent from the complaint � that no prior relationship existed,” Van Arsdel said. In his brief, Keane also alleges the attorney fee award is excessive. Van Arsdel, however, told the 5th Circuit panel that the attorneys’fees award is legitimate, because the defendants had to defend against the litigation Keane filed and, in particular, had to defend against copyright claims that Keane included in his original complaint and later dropped in his second amended complaint. In the second amended complaint, Keane brought trademark and state-law claims. In its brief, Fox Television alleges that Keane should have known that he cannot copyright an idea, and there is no trademark protection for a mark that Keane never used in commerce.

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