If an infringing performance of licensed broadcast media reaches domestic users in the United States, can the foreign originator of the performance be held liable under the United States Copyright Act? The D.C. Circuit has answered that in the affirmative by holding that an infringing performance that originates abroad but terminates in the United States constitutes a domestic Copyright Act violation. Spanski Enterprises, Inc. v. Telewizja Polska, S.A., 17-7051, 2018 WL 1123889 (D.C. Cir. Mar. 2, 2018).
Spanski owned the exclusive license to broadcast certain Polish media in the United States. TV Polska owned and had the right to show that media in other countries. TV Polska published the licensed content on its website through a video-on-demand feature. TV Polska claimed it used geoblocking technology to prevent the showing of the Spanski-licensed media in the United States by restricting access to non-US IP addresses. Although strenuously disputed, the trial court found that TV Polska deliberately removed the geoblocking technology from certain episodes allowing the episodes to be broadcast to viewers in the United States.
Despite the trial court’s findings, TV Polska argued that it could not be liable for infringement as all its conduct occurred outside the United States, and the Copyright Act did not apply outside the United States. These facts were not dispositive as the Court considered the Supreme Court’s two-step framework in analyzing whether a violation of a U.S. statute that occurred abroad would result in liability. RJR Nabisco, Inc. v. European Community, ––– U.S. ––––, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016).
Under the framework, the “court first asks ‘whether the statute gives a clear, affirmative indication that it applies extraterritorially,’” (citing RJR Nabisco, 136 S.Ct. at 2101). The court assumed, without deciding, that the Copyright Act had no extraterritorial application. The second step of the process required the court to determine whether the case involved “‘a permissible domestic application’ of the Copyright Act.” Id. (citing RJR Nabisco, 136 S.Ct. at 2101). In this context, the Court viewed the statute’s focus, or what it sought to regulate. The Supreme Court held, “[i]f the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad…” RJR Nabisco, 136 S.Ct. at 2101.
Here, the Court found that the focus of the Copyright Act was to protect the exclusive rights of U.S. copyright holders and police infringement of such rights. The conduct relevant to that focus was the copyright infringement–the performances that were shown on computer screens in the United States–conduct that occurred in the United States. Accordingly, the Court affirmed the statutory damages award for copyright infringement in the amount of $3,060,000.
The Court did not dispute the assertion that its decision could open the door to subjecting any user who uploads content in a foreign jurisdiction to Copyright Act liability if a U.S. citizen happens upon the content. The Court held “only that a foreign broadcaster that … directs infringing performances into the United States from abroad commits a domestic violation of the Copyright Act.” As a result, even foreign broadcasters should take steps to audit their copyright portfolio to ensure that their rights to broadcast do not infringe on any U.S. copyright.
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