Foreign Broadcaster Infringes U.S. Copyright By Featuring Copyrighted Content on Its Foreign Website

Telewizja Polska, S.A. (“TV Polska”), Poland’s national public television broadcaster, owns and creates content for several Polish-language television channels, including TVP Polonia.  TV Polska entered a licensing agreement with Spanski Enterprises, Inc., giving Spanski exclusive rights in North and South America to perform TVP Polonia’s content, including over the internet. 

TV Polska’s website makes its programming available to the public through a video-on-demand feature.  To protect Spanski’s exclusive rights, TV Polska used geoblocking technology that prevents North and South American Internet users from accessing TVP Polonia content.  In addition, two separate groups of TV Polska employees were responsible for ensuring that each uploaded episode includes the appropriate territorial restrictions.  By default, during the relevant period, each episode was automatically geoblocked from North or South American IP addresses, unless a program editor affirmatively chose different instructions. 

In late 2011, Spanski discovered that fifty-one episodes of certain TVP Polonia television programs that Spanski had registered with the U.S. Copyright Office were not geoblocked.  Spanski sued TV Polska in U.S. district court asserting its exclusive right to “perform” these episodes “publicly.”  The district court held TV Polska liable for willful infringement and awarded Spanski over $3 million in statutory damages.  TV Polska appealed, and the Court of Appeals affirmed.

Regarding liability, TV Polska made two arguments.  First it asserted that a claim for direct infringement requires proof of volitional conduct.  According to TV Polska, such conduct is absent where: (1) a website owner operates a non-infringing, automatic content delivery system; (2) the user selects the content it will view; and (3) the user’s request is not processed by the website owner’s employees.  The Court disagreed because under the Copyright Act, performing a copyrighted work means “to show its images in any sequence or to make the sounds accompanying it audible.”  To do so publicly means to “transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  Because it showed the episodes to the public through its video-on-demand system, allowing the public to see them in separate places and at different times, TV Polska violated Spanski’s public performance rights. 

TV Polska’s also argued that holding it liable for such infringement would constitute an impermissible extraterritorial application of the Copyright act because TV Polska did nothing in the United States.  The Court noted that “[w]hether an infringing performance that originates abroad but that ultimately reaches viewers in the United States can be actionable under the Copyright Act is a question of first impression in the federal appellate courts.”  The issue was whether, notwithstanding the case’s extraterritorial elements, it involved a permissible domestic application of the Copyright Act.  The Court determined it did.  Here, though TV Polska uploaded the fifty-one episodes in Poland, the infringing performances occurred on computer screens in the United States.  The Court noted: “Given the ease of transnational internet transmissions, a statutory scheme that affords copyright holders no protection from such broadcasters would leave the door open to widespread infringement, rendering copyright in works capable of online transmission largely nugatory.”

The Court also found that the district’s court’s willfulness determination was supported by the fact that TV Polska deliberately removed the geoblocking from the fifty-one episodes, and took purposeful steps to hide its conduct.

The case is Spanski Enterprises, Inc. v. Telewizja Polska, S.A., Case No. 17-7051 (D.C. Cir. Dec. 7, 2017).