Foreign Broadcaster Infringed US Copyright Through Online Streaming

by McDermott Will & Emery
Contact

McDermott Will & Emery

Addressing for the first time the issue of whether the US Copyright Act governs a performance that originated abroad but is accessible by viewers in the United States, the US Court of Appeals for the District of Columbia held that it does, affirming the district court’s liability finding and its damages award of more than $3 million. Spanski Enterprises v. Telewizja Polska, S.A., Case No. 17-7051 (DC Cir., Mar. 2, 2018) (Tatel, J).

Telewizja Polska, S.A. (TV Polska), a Polish television broadcaster and owner, operator and creator of the television episodes at issue in this case (TVP Polonia Content), entered into a license granting Spanski Enterprises, Inc., the exclusive right to perform the TVP Polonia Content in North and South America, including via the internet. In accordance with this agreement, TV Polska used geoblocking technology to ensure that internet users in North and South America could not access TVP Polonia Content through its video-on-demand website. Spanski discovered, however, that some of the content (specifically, 51 episodes that Spanski had registered with the US Copyright Office) was not effectively geoblocked and was therefore accessible in North and South America via TV Polska’s streaming website.

Spanski sued for copyright infringement, alleging that TV Polska violated Spanski’s exclusive public performance rights in the 51 episodes. The district court found that TV Polska infringed Spanski’s copyrights and awarded damages of $60,000 per infringed episode ($3.06 million total), doubling the statutory damages cap of $30,000 per infringed work based in part on its finding that TV Polska acted willfully to infringe Spanski’s copyrights and had made it impossible to determine the actual damages by deleting certain records and altering evidence. TV Polska appealed.

TV Polska challenged the district court’s finding that its employees intentionally removed the geoblocking technology and argued that, regardless, it would be the viewer(s) (and not TV Polska) that were liable for any infringement. Alternatively, TV Polska argued that the Copyright Act did not apply extraterritorially to conduct that occurred in Poland, and thus any liability finding would be an impermissible extension of US copyright law.

The DC Circuit rejected TV Polska’s arguments, citing the Supreme Court of the United States case American Broadcasting Cos. v. Aereo, Inc. (2014) (IP Update, Vol. 17, No. 7) for the principle that both the broadcaster and the viewer “publically perform” the copyrighted work and can both be liable for copyright infringement. Further, the Court determined that the US Copyright Act applied because “the conduct relevant to the statute’s focus occurred in the United States . . . even if other conduct occurred abroad.” The Copyright Act aims to protect copyright holders’ exclusive rights, including the public performance right. Accordingly, the US Copyright Act governed the performance of the TVP Polonia Content episodes, because the performance(s) occurred on US screens via online streaming, regardless of the fact that the content was uploaded in Poland. “Given the ease of transnational internet transmissions,” to hold otherwise “would leave the door open to widespread infringement, rendering copyright in works capable of online transmission largely nugatory,” the Court reasoned. 

The Court likewise rejected TV Polska’s challenge to the damages award, finding no basis to disrupt the district court’s conclusion as to the number of episodes infringed or that the conduct was willful. 

Practice Note: This case underscores the importance of effective geoblocking by streaming services. A party that owns rights in one country may be liable for failing to block users in another country, where someone else holds the right.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDermott Will & Emery | Attorney Advertising

Written by:

McDermott Will & Emery
Contact
more
less

McDermott Will & Emery on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.