Court confirms US copyright law applies to overseas content
A case which attracted the attention of the US government has confirmed that the country’s copyright law applies in cases where content originating overseas is directed towards US viewers in violation of the rights of US copyright owners.
Circuit Judge David Tatel delivered judgment in the US Court of Appeals for the District of Columbia Circuit on Friday, March 2, following a hearing in December.
The dispute centred on whether Polish broadcaster Telewizja Polska’s (TVP) uploading of content from Poland to US viewers could infringe the rights of a US copyright owner.
TVP granted Canadian company Spanski Enterprises (SEI) an exclusive right to share TVP’s content in the US in 1995.
The parties agreed that TVP would use geo-blocking technology to place territorial restrictions on TVP’s streamed content in the US in order to protect SEI’s exclusive licence to share the content in the US. However, SEI found that it could still stream programmes from TVP in New York.
SEI claimed TVP disabled the geo-blocking technology, violating SEI’s right to be the exclusive sharer of TVP’s content in the US. SEI filed a copyright complaint, resulting in an award of $3.06 million against TVP in the US District Court for the District of Columbia in December 2016.
On appeal, TVP made two core arguments in its brief.
First, that US copyright legislation does not apply extraterritorially. The district court found that TVP’s uploading of 51 episodes to its system constituted infringement, but TVP said that these acts occurred in Poland, where US copyright law does not apply.
In response the US government filed an amicus brief arguing that a copyright owner’s exclusive licence can still be infringed under US law when the transmission of the unauthorised performance originates oversees.
TVP’s second argument was that the company may be held liable for direct copyright infringement only if its conduct was “volitional”; TVP lawfully uploaded its own content to its automated system in Poland.
The court said “it is not infringement to establish an automated content delivery system that is not itself infringing when the user of the system (not the defendant) selects the content to view, actuates the system, and employees of the defendant do not process the request”.
The US government claimed that such an interpretation of the law was rejected by the Supreme Court in Aereo, another case relating to a streaming service accused of copyright infringement.
Entertainment companies including Disney, Fox, and Warner also filed an amicus brief to the same effect.
In his judgment, Tatel confirmed that automated services such as TVP’s system are not protected from liability in cases such as this.
He confirmed that “Congress had good reason to allow domestic copyright holders to enforce their rights against foreign broadcasters who direct infringing performances” into the US.
Not affording the protection “Congress bestowed on copyright holders” in matters such as this “would leave the door open to widespread infringement”, Tatel said.
Rejecting TVP’s appeal, the court also upheld the district court’s award of $3.06 million in damages as “we have no basis for upsetting” the lower court’s “supportable conclusion”, he said.
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