Prostar v. Massachi

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30268

PROSTAR, as Broadcast Licensee of the December 6, 1997,

De La Hoya/Rivera Program,

Plaintiff-Appellant,

versus

JAMES ALLEN MASSACHI, JR., and TOBY IS DEAD, INC.,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

January 17, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit

Judges.

PER CURIAM:

This case presents us with the task of determining the

appropriate statute of limitations for an action brought under 47

U.S.C. §§ 553 and 605. As these provisions contain no express

limitations period, the district court adopted the one-year

prescriptive period for delictual actions under Louisiana law.1

Appellant Prostar argues that the court should have applied the

three-year limitations period articulated in the federal Copyright

1

See La. Civ. Code Ann. art. 3492.

Act.2 Alternatively, Prostar requests the application of either the

ten-year limitations period for personal actions under Louisiana

law3 or the three-year period applicable to actions under Article

3494 of the Louisiana Civil Code. We find that the limitations

period governing actions under the Copyright Act is applicable and

now reverse.

I

Prostar filed suit against Appellees Massachi and Toby Is

Dead, Inc. on April 29, 1999, alleging violations of the Federal

Communications Act (FCA).4 Prostar, a Texas corporation, had

purchased the commercial sales rights to various territories,

including Louisiana, for transmission of the December 6, 1997, De

La Hoya/Rivera boxing broadcast. Investigation by Prostar allegedly

revealed that an establishment known as "Jimani Lounge and

Restaurant" had improperly intercepted and exhibited the broadcast

on December 6, 1997. Appellees contended that Prostar's suit was

time-barred, as it was filed after the one-year limitations period

set forth under Article 3492 of the Louisiana Civil Code, which

2

See 17 U.S.C. § 507.

3

See La. Civ. Code Ann. art. 3499.

4

48 Stat. 1064 (June 19, 1934) (codified as amended in

relevant part at 47 U.S.C. §§ 553, 605). Section 553 was added to

the structure of the Federal Communications Act by the Federal

Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98

Stat. 2779, 2796.

2

governs delictual actions. The district court granted Appellees'

Motion for Judgment on the Pleadings requesting dismissal.

II

Reviewing the district court's decision de novo,5 we note that

the FCA does not specify a statute of limitations for actions by

licensees such as Prostar under 47 U.S.C. §§ 553 and 6056 - "a void

5

See Fed. R. Civ. P. 12(c); Shipp v. McMahon, 199 F.3d 256,

260 (5th Cir. 2000).

6

Neither party suggests that the two-year limitations period

articulated in 47 U.S.C. § 415 applies. This limitations period is

restricted to suits involving common carriers. See 47 U.S.C. § 415.

Prostar does not - and cannot - contend that it is a common

carrier. See 47 U.S.C. § 153(10) (defining "common carrier" or

"carrier" as "any person engaged as a common carrier for hire, in

interstate or foreign communication by wire or radio or in

interstate or foreign radio transmission of energy, except where

reference is made to common carriers not subject to this chapter;

but a person engaged in radio broadcasting shall not . . . be

deemed a common carrier"); 47 U.S.C. § 541(c) ("Any cable system

shall not be subject to regulation as a common carrier or utility

by reason of providing any cable service."); United States v.

Southwestern Cable Co., 392 U.S. 157, 169 n.29 (1968) (finding that

cable companies are not common carriers); H.R. Rep. No. 98-934, at

29, 60 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4666, 4697

(noting the general exemption of cable companies from common

carrier regulations).

This Court does not find that 47 U.S.C. § 415 provides the

appropriate statute of limitations for 47 U.S.C. §§ 553, 605. See

Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc., 98 F.

Supp. 2d 958, 962 n.3 (N.D. Ill. 2000); Joe Hand Promotions, Inc.

v. Lott, 971 F. Supp. 1058, 1061-62 (E.D. La. 1997); That's

Entertainment of Illinois, Inc. v. Centel Videopath, Inc., No. 93

C 1471, 1993 U.S. Dist. LEXIS 19488, at *8-*20 (N.D. Ill. Dec. 9,

1993). But see CSC Holdings, Inc. v. J.R.C. Products, Inc., 78 F.

Supp. 2d 794, 802 (N.D. Ill. 1999) (assuming without deciding that

section 415 is the appropriate statute of limitations for cable

operator's action under 47 U.S.C. § 553). Given that the language

of section 415 refers only to carriers, we infer that Congress did

3

which is commonplace in federal statutory law."7 As a matter of

interstitial lawmaking, this Court must adopt the appropriate

statute of limitations from either state or federal sources. The

Supreme Court has affirmed that state law is the "lender of first

resort," and that courts generally are to adopt the closest state-

law analogue.8 However, in limited circumstances, the Court has

countenanced the application of an analogous federal law where

application of state law would "frustrate or interfere with the

implementation of national policies . . . or be at odds with the

purpose or operation of federal substantive law."9 Under such

not intend this provision to apply to non-carriers. See Russello v.

United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion."). Moreover, we find persuasive the

district court's reasoning in Centel Videopath that the Supreme

Court's decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350 (1991), is distinguishable. The Court in

Lampf applied the limitations period articulated in section 13 of

the Securities Exchange Act to violations of section 10b, despite

the fact that section 13 only referred to sections 11, 12(1), and

12(2) of the Act. See id. at 359-60. However, because a private

cause of action under section 10b is a judicial creation, see id.

at 359, no negative implication could be derived from section 13's

failure to refer to section 10b. See Centel Videopath, 1993 U.S.

Dist. LEXIS 19488, at *17-*18.

7

Board of Regents v. Tomanio, 446 U.S. 478, 483 (1980). 28

U.S.C. § 1658 is inapposite, as the generic four-year limitations

period articulated therein only applies to causes of action created

after December 1, 1990. See 28 U.S.C. § 1658.

8

See North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995).

9

Id. (citations and internal quotation marks omitted).

4

circumstances, a court must decide whether "a federal statute of

limitations for another cause of action better reflect[s] the

balance that Congress would have preferred between the substantive

policies underlying the federal claim and the policies of repose."10

The Supreme Court has emphasized the limited nature of this

exception, stating that a federal limitations period should apply

only where it "clearly provides a closer analogy than available

state statutes, and when the federal policies at stake and the

practicalities of litigation make that rule a significantly more

appropriate vehicle for interstitial lawmaking."11

Our inquiry therefore entails the following successive levels

of analysis. First, courts must "characterize the essence" of the

statute in question to determine which state cause of action is

most analogous.12 Second, courts must determine whether application

of the state limitations period would frustrate the policies

underlying the federal law or impede its practical implementation.13

If a state limitations period would not generate such adverse

consequences, then the state limitations period applies and our

10

Wilson v. Garcia, 471 U.S. 261, 270 (1985).

11

North Star, 515 U.S. at 35; see Lampf, 501 U.S. at 355-58;

DelCostello v. International Brotherhood of Teamsters, 462 U.S.

151, 158-62, 171-72 (1983).

12

Staudt v. Glastron, Inc., 92 F.3d 312, 314 (5th Cir. 1996),

quoting Garcia, 471 U.S. at 268.

13

North Star, 515 U.S. at 35.

5

inquiry is concluded.14 However, if a conflict is apparent, then

courts must examine whether the federal interest in uniformity

mandates the application of an analogous federal standard. This

third level of analysis requires courts to examine whether federal

law affords a closer analogy than state law.15 We now proceed to

examine the relevance of the preceding steps to the instant case.

A

First, we must "characterize the essence" of an action under

sections 553 and 605 of the FCA.16 The legislative history

associated with section 553 and the amendments to section 605

reveals that one of Congress's principal objectives was to

discourage theft of cable services.17 To that end, Congress

articulated a variety of penalties and remedies to "protect the

revenue of television cable companies from unauthorized reception

of their transmissions."18

14

See id. at 37 (noting that, where a state analogue offers

a limitations period without frustrating consequences, "it is

simply beside the point that even a perfectly good federal analogue

exists").

15

See id. at 35; Lampf, 501 U.S. at 355-58.

16

Staudt, 92 F.3d at 314.

17

See Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc.,

98 F. Supp. 2d 958, 961 (N.D. Ill. 2000); H.R. Rep. No. 98-934, at

83-85 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720-22.

18

Boom Town Saloon, 98 F. Supp. 2d at 961, quoting Time/Warner

Entm't/Advance-Newhouse Partnership v. Worldwide Elec., L.C., 50 F.

6

Section 553(a)(1) provides that "[n]o person shall intercept

or receive or assist in intercepting or receiving any

communications service offered over a cable system, unless

specifically authorized to do so."19 Section 605 similarly states

that "[n]o person not being entitled thereto shall receive or

assist in receiving any interstate or foreign communication by

radio and use such communication (or any information therein

contained) for his own benefit or for the benefit of another not

entitled thereto."20 In addition, section 605 prohibits anyone

unlawfully receiving such communications from divulging or

publishing the information or transmission.21 Both sections

contemplate civil (and criminal) enforcement measures.22

We recognize that courts are divided as to whether and to what

extent section 605 even applies to actions by cable companies.23 In

amending the FCA, Congress in 1984 inserted language referring to

Supp. 2d 1288, 1293 (S.D. Fla. 1999).

19

47 U.S.C. § 553(a)(1).

20

47 U.S.C. § 605(a).

21

Id.

22

See 47 U.S.C. §§ 553(b)-(c), 605(e).

23

Compare United States v. Norris, 88 F.3d 462 (7th Cir. 1996)

(finding that section 605 does not apply to theft of cable services

carried over coaxial cable, but that it does apply to interception

of cable transmissions as they travel through the air), and CSC

Holdings, Inc. v. Kimtron, Inc., 47 F. Supp. 2d 1361 (S.D. Fla.

1999) (following Norris), with International Cablevision, Inc. v.

Sykes, 75 F.3d 123 (2d Cir. 1996) (concluding that section 605

applies to theft of cable service carried over coaxial cable).

7

"satellite cable programming" in section 605(b), which discusses

exceptions to the prohibitions articulated in section 605(a).24

However, Congress did not change the language in section 605(a) to

expressly include cable transmissions. In contrast, Congress

expressly prohibited the unlawful interception of cable

communications in section 553(a). We need not resolve this dispute

today, as the limitations period articulated in the Copyright Act

applies to actions brought under either provision.

Section 553(a)(1) provides an array of civil and criminal

remedies for unauthorized interception of cable signals. Section

553(c)(1) provides "[a]ny person aggrieved by any violation of

subsection (a)(1)" a private right of action.25 Prevailing parties

may obtain injunctive relief, damages, and attorney's fees and

costs.26 Moreover, section 553 contemplates the award of either (1)

actual damages suffered by the plaintiff, as well as recovery of

profits gained by the person violating the Act; or (2) statutory

damages of an amount not less than $250 and not more than $10,000,

"as the court considers just."27 The statute also gives courts the

discretion to increase the actual or statutory damages to up to

24

See Cable Communications Policy Act of 1984, Pub. L. No. 98-

549, § 5(a), 98 Stat. 2779, 2803-04 (codified as amended at 47

U.S.C. § 605(b)).

25

47 U.S.C. § 553(c)(1).

26

See 47 U.S.C. § 553(c)(2).

27

See 47 U.S.C. § 553(c)(3)(A)(ii).

8

$50,000 where willful violations are present.28 Conversely, the

court may reduce damages to not less than $100 where "the violator

was not aware and had no reason to believe that his acts

constituted a violation of this section."29

Section 605 also articulates criminal and civil penalties for

violations of its prohibition against the unauthorized interception

and subsequent publication of transmissions. Like section 553,

section 605(e)(3) provides aggrieved parties with the right to

obtain injunctive relief, damages, and attorney's fees and costs.30

The statute allows for both kinds of actual damages noted above, as

well as statutory damages.31 However, an aggrieved party can recover

slightly higher statutory damages (between $1,000 and $10,000) than

under section 553.32 Finally, courts have the same discretion as

under section 553 to raise or lower the damage award according to

the intent and knowledge of the violator.33 Sections 553 and 605

28

See 47 U.S.C. § 553(c)(3)(B).

29

47 U.S.C. § 553(c)(3)(C).

30

See 47 U.S.C. § 605(e)(3).

31

See 47 U.S.C. § 605(e).

32

See 47 U.S.C. § 605(e)(3)(C)(i)(II). The statute also

provides a private right of action against "[a]ny person who

manufactures, assembles, modifies, imports, exports, sells, or

distributes any electronic, mechanical, or other device or

equipment" used for the decryption of satellite cable programming

or that is intended to facilitate the conduct prohibited in section

605(a). 47 U.S.C. §§ 605(e)(4), 605(e)(3)(C)(i)(II).

33

See 47 U.S.C. §§ 605(e)(3)(C)(ii)—(iii).

9

ultimately implicate similar policy objectives and provide similar

standards and remedies.

B

In assessing the appropriate state-law analogue to the FCA

provisions at issue, we note that the parties have offered three

potential candidates from Louisiana law: (1) Article 3492 of the

Louisiana Civil Code, which governs delictual actions; (2) Article

3499, outlining the standards applicable to personal actions; and

(3) Article 3494, providing for "recovery of compensation."

Appellees contend that the one-year limitations period governing

delictual actions is the most appropriate analogue. Relying on Joe

Hand Promotions, Inc. v. Lott,34 Appellees assert that cable theft

is analogous to the tort of conversion, which is prohibited under

Article 3492.35 Louisiana law defines conversion as "an act in

derogation of the plaintiff's possessory rights, and any wrongful

exercise or assumption of authority over another's goods, depriving

him of the possession, permanently or for an indefinite time."36

Some district courts have found cable theft to be analogous to

34

971 F. Supp. 1058 (E.D. La. 1997).

35

See Charbonnet v. Spalitta, 747 So. 2d 1155, 1158 (La. Ct.

App. 5th Cir. 1999); La. Civ. Code Ann. art. 3492 (rev. cmts.,

1983) ("The notion of delictual liability includes: intentional

misconduct, negligence, abuse of right, and liability without

negligence.").

36

Charbonnet, 747 So. 2d at 1158.

10

conversion, as the defendants in such cases unlawfully

"appropriate" the plaintiff's property (i.e., the cable

transmission).37 Indeed, Prostar's own complaint described

Appellees' conduct as the "interception or tortious conversion" of

Prostar's property.38

Conversion is a closer analogy to the relevant provisions of

the FCA than Louisiana law governing "personal actions." Article

3499 of the Louisiana Civil Code provides a ten-year statute of

limitations for personal actions, which are defined as "those that

seek to enforce personal rights."39 Personal actions include, inter

alia, actions grounded on a lease; actions for the "recovery of

future things;" revocatory actions; and actions sounding in quasi-

contract.40 However, Article 3499 does not apply to tort actions.41

37

See Kingvision Pay Per View, Ltd. v. Wilson, 83 F. Supp. 2d

914, 919 (W.D. Tenn. 2000) (applying Tennessee's three-year statute

of limitations for conversion actions); Joe Hand, 971 F. Supp. at

1063 (applying Louisiana's one-year period for conversion actions);

Kingvision Pay Per View, Ltd. v. Bowers, 36 F. Supp. 2d 915, 918

(D. Kan. 1998) (applying Kansas's two-year limitations period for

conversion actions).

38

Plaintiff's Verified Complaint at 2. See Northcott

Exploration Co. v. W.R. Grace & Co., 430 So. 2d 1077 (La. App. 3d

Cir. 1983) (noting that the character of the action given by the

plaintiff in his pleadings determines the applicable prescription).

39

A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise: Property

§ 242 (3d ed. 1991).

40

See id.; Burns v. Sabine River Auth., 736 So. 2d 977 (La.

App. 3d Cir. 1999).

41

See Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989).

11

Prostar can not find refuge in quasi-contract, as quasi-contractual

obligation is based on the principles of unjust enrichment.42 Unjust

enrichment requires, inter alia, a showing that the plaintiff has

no other remedy at law. Where a conversion action is available, as

in the instant case, a claim of unjust enrichment is not viable.43

The claims contemplated by Article 3494 are also less

analogous to the instant action than the tort of conversion.

Article 3494 provides a three-year prescriptive period for actions

for the "recovery of compensation for services rendered, including

payment of salaries, wages, commissions, tuition fees, professional

fees, fees and emoluments of public officials, freight, passage,

money, lodging, and board."44 However, as the Louisiana Supreme

Court has observed, Article 3494 "merely provides exceptions to the

general rule stated in Article 3499 that a personal action

42

See Minyard v. Curtis Prods., Inc., 205 So. 2d 422 (La.

1967).

43

See Central Oil & Supply Corp. v. Wilson Oil Co., 511 So.

2d 19, 21 (La. App. 3d Cir. 1987). Prostar also argues that its

claim is "[a] revindicatory action brought to assert or protect the

right of ownership in movable property." Songbyrd, Inc. v.

Bearsville Records, Inc., 104 F.3d 773, 778 (5th Cir. 1997). As

this Court has noted, a revindicatory action for the recovery of

movable property is imprescriptible. See id. However, a

revindicatory action abates when the movable is no longer in the

defendant's possession. See Johnson v. Hardy, 756 So. 2d 328, 332

(La. App. 1st Cir. 1999). Prostar is suing for damages, not for the

recovery of the broadcast. Appellees can not be viewed as remaining

in "possession" of the broadcast.

44

La. Civ. Code Ann. art. 3494(1). This provision also

encompasses actions for arrearages of rent and annuities, as well

as actions on money lent. See La. Civ. Code Ann. art. 3494(2)-(3).

12

prescribes in ten years."45 We have already noted that Prostar's

claim is not analogous to a personal action. A fortiori, Prostar's

claim does not qualify as an exception to the statute governing

personal actions. Perusal of the kinds of actions listed in Article

3494 confirms our conclusion that its provisions are inapposite to

the case at bar.

C

Having determined that the tort of conversion provides the

closest state-law analogue to Prostar's claim, we must examine

whether or not Article 3492 of the Louisiana Civil Code is "at odds

with" the FCA's "purpose or operation, or frustrate[s] or

interfere[s] with the intent behind it."46 Prostar contends, first,

that application of a one-year statute of limitations would not

provide victims of cable theft with enough time to investigate,

uncover, and file claims against violators. Prostar refers to the

"ever evolving technological developments which enable signal

pirates to 'cloak' their theft or misuse such transmissions."

Prostar argues that adoption of the "relatively short" period of

one year would actually encourage piracy by making it easier for

malefactors to evade detection. While we are sympathetic to the

45

Grabert v. Iberia Parish Sch. Bd., 638 So. 2d 645, 647 (La.

1994).

46

North Star Steel Co. v. Thomas, 515 U.S. 29, 35 (1995)

(internal quotation marks omitted).

13

cable industry's concerns in this regard, we are not prepared to

say that one year is too short as a matter of law for investigation

and detection of violations. Prostar presents no evidence or

references to support its assertions that one year is insufficient.

Indeed, it concedes that a "plaintiff can readily identify that an

establishment exhibited a broadcast without paying the appropriate

license fee." Prostar states that the more difficult task is

identifying the entity or individuals involved. Again, we can not

say that one year is insufficient.47

Prostar argues that the need for national uniformity in

enforcing the FCA requires the application of a single standard. As

Prostar observes, the cable industry is a distinctly national (and

international) enterprise. In the 1984 House Report accompanying

passage of amendments to the FCA, the House committee noted that

the issues facing the cable industry were national in scope and

underscored the need for a correspondingly national enforcement

regime.48

47

The instant case is therefore distinguishable from

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151

(1983), in which the Supreme Court held that state-law limitations

periods of thirty and ninety days were too short for actions

brought under section 301 of the Labor Management Relations Act and

the fair representation doctrine.

48

See, e.g., H.R. Rep. No. 98-934 (1984), at 22, 83-85,

reprinted in 1984 U.S.C.C.A.N. 4655, 4659, 4720-22.

14

The posture of the instant case affirms the "multistate

nature" of actions brought under the FCA.49 Prostar is a Texas

corporation suing for alleged signal piracy conducted in a

Louisiana establishment. More generally, cable broadcasts are

routinely conducted on a national and international scale. Cable

piracy consequently differs from many of the cases where courts

have applied state-law limitations periods, as these typically

involved isolated events, such as a plant closing or "mass layoff"

at a single site of employment;50 the termination of an employee;51

or a wrongful arrest.52

We find that application of Louisiana conversion law to cable

piracy claims brought under 47 U.S.C. § 553 and 605 would undermine

the implementation of the FCA.53 The application of state conversion

49

See Lampf, Pleva, Lipkind, Prupis & Petigrew v. Gilbertson,

501 U.S. 350, 357 (1991).

50

See North Star, 515 U.S. at 36-37.

51

See Hogan v. Kraft Foods, 969 F.2d 142, 145 (5th Cir. 1992).

52

See Wilson v. Garcia, 471 U.S. 261, 276-79 (1985).

53

We recognize that the Supreme Court has on one occasion

responded to the need for uniformity by eschewing a federal

standard and mandating the application of a single state-law cause

of action. For example, in Wilson v. Garcia, the Supreme Court held

that each state's personal injury law would furnish the appropriate

statute of limitations for claims brought under 42 U.S.C. § 1983.

See Garcia, 471 U.S. at 276. However, that case involved a civil

rights claim - i.e., a wrongful arrest and alleged battery - that

was local in character. For such actions, the Court felt that

"uniformity within each state" was sufficient. Id. at 275. The

multistate character of the activity in question distinguishes the

instant case from Garcia.

15

law in each of the fifty states would result in widely varying

limitations periods.54 As Prostar notes, cable companies engage in

multistate activities and would consequently be required to "make

fifty separate decisions" in their efforts to investigate and

pursue cable piracy. A single federal standard would eliminate

these practical difficulties, facilitating resolution of the

national problems addressed by the FCA.

D

We conclude that the Copyright Act provides the appropriate

federal-law analogue to Prostar's FCA claims. Indeed, the Copyright

Act provides a "closer fit" than conversion.55 The Copyright Act and

the FCA both protect proprietary rights in the context of cable

transmissions. The Copyright Act prohibits infringement by

"[a]nyone who violates any of the exclusive rights of the copyright

owner."56 Infringement encompasses the unauthorized performance or

54

Compare, e.g., La. Civ. Code Ann. art. 3492 (articulating

a one-year prescriptive period), with R.I. Gen. Laws § 9-1-13

(2000) (imposing a ten-year statute of limitations).

55

See Lampf, Pleva, Lipkind, Prupis & Petigrew v. Gilbertson,

501 U.S. 350, 357 (1991). The Supreme Court has noted that

"commonality of purpose and similarity of elements will be

relevant" to determining whether federal law is more analogous than

state law. Id. at 358.

56

17 U.S.C. § 501(a). To succeed on a claim for direct

copyright infringement, a plaintiff must show: (1) ownership of the

copyrighted material, and (2) copying by the defendant. See Alcatel

USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772, 790 (5th Cir.

1999).

16

display of motion pictures and other audiovisual works.57 Moreover,

the statute explicitly prohibits infringement in the context of

secondary transmissions by cable systems.58 The unauthorized access

and retransmission of cable broadcasting, which the FCA prohibits,

does not actually deprive the licensee of its license. Whereas

conversion requires the wrongful deprivation of one's possession of

property,59 the Copyright Act provides for liability when mere

copying occurs, rendering it a more appropriate analogue to the

FCA.60

In addition, both statutes have similar remedial structures.

For instance, the FCA and the Copyright Act allow for statutory and

actual damages.61 Both acts give the court discretion to increase

57

See 17 U.S.C. § 106(4)-(5). See Kepner-Tregoe, Inc. v.

Leadership Software, Inc., 12 F.3d 527, 532 (5th Cir. 1994) (noting

that copying of copyrighted computer program violates the Copyright

Act); National Cable Television Ass'n, Inc. v. Broadcast Music,

Inc., 772 F. Supp. 614, 651 (D.D.C. 1991) (holding that

transmission by cable programmers of programming containing

copyrighted music constitutes public performance of that music,

creating liability for infringement).

58

See 17 U.S.C. § 501(c)-(e).

59

See La. Civ. Code Ann. art. 3492; Charbonnet v. Spalitta,

747 So. 2d 1155, 1158 (La. Ct. App. 5th Cir. 1999).

60

This Court has stated that copyright infringement by the

unauthorized distribution of copies is not "stealing, converting,

or taking by fraud." United States v. Smith, 686 F.2d 234, 242 (5th

Cir. 1982). We have also recognized that taping copies of a

copyrighted broadcast "does not implicate a tangible item. . . . .

nothing was removed from someone's possession." Id. at 243.

61

See 17 U.S.C. § 504(b), (c); 47 U.S.C. §§ 553(c)(3)(A),

605(e)(3)(C)(i).

17

the statutory damage award for willful violations.62 Finally, both

acts also provide for the award of costs and attorney's fees.63

We refuse to interpret Congress's failure to articulate a

statute of limitations for 47 U.S.C. §§ 553 and 605 as an

inexorable command that courts apply state law. Although courts are

frequently justified in assuming that Congress "intend[ed] by its

silence that we borrow state law,"64 silence may also indicate that

Congress did not give "any express consideration to the problem of

limitations periods."65 Furthermore, Congress's failure to

subsequently amend the statute to include a limitations period may

only "betoken[] unawareness, preoccupation, or paralysis."66 Inertia

is endemic to the legislative process, rendering congressional

inaction a problematic interpretive guide.67 More fundamentally, if

62

See 17 U.S.C. § 504(c)(2); 47 U.S.C. §§ 553(c)(3)(B),

605(e)(3)(C)(ii).

63

See 17 U.S.C. § 505; 47 U.S.C. §§ 553(c)(2)(C),

605(e)(B)(iii).

64

North Star Steel Co. v. Thomas, 515 U.S. 29, 35 (1995)

(internal quotation marks omitted).

65

DelCostello, 462 U.S. at 158 n.12. See also International

Union v. Hoosier Cardinal Corp., 383 U.S. 696, 709 (1966) (White,

J., dissenting) ("[T]he silence of Congress is not to be read as

automatically putting an imprimatur on state law.").

66

Brown v. Gardner, 513 U.S. 115, 121-22 (1994), quoting Zuber

v. Allen, 396 U.S. 168, 185 n.21 (1969); see also Patterson v.

McLean Credit Union, 491 U.S. 164, 175 n.1 (1989) ("Congressional

inaction cannot amend a duly enacted statute.").

67

See William N. Eskridge, Jr., Interpreting Legislative

Inaction, 87 Mich. L. Rev. 67, 98-104 (1988) (discussing the causes

18

this Court were to always find dispositive Congress's failure to

include a statute of limitations, we would apply a state statute of

limitations in every case. Such an outcome would run counter to the

Supreme Court's clear mandate that courts apply federal law in

limited circumstances.68 Because we find that such circumstances are

present in the instant case, we reject the reasoning adopted in Joe

Hand Promotions, Inc. v. Lott69 and hold that the three-year

limitations period articulated in the Copyright Act governs

Prostar's FCA claims.70 As Prostar's claims were not time-barred,

we hereby REVERSE the district court's judgment and REMAND for

further proceedings.

REVERSED.

and characteristics of legislative inertia).

68

See Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc.,

98 F. Supp. 2d 958, 964 (N.D. Ill. 2000).

69

971 F. Supp. 1058 (E.D. La. 1997).

70

This holding is consonant with Boom Town Saloon, Inc., 98

F. Supp. 2d at 964; Entertainment by J&J, Inc. v. Tia Maria

Mexican Restaurant & Cantina, Inc., 97 F. Supp. 2d 775, 779-80

(S.D. Tex. 2000); and That's Entertainment of Illinois, Inc. v.

Centel Videopath, Inc., No. 93 C 1471, 1993 U.S. Dist. LEXIS 19488,

at *19-*20 (N.D. Ill. Dec. 9, 1993).

19