US Court of Appeals Confirms Application of US Copyright Law to Foreign Originating Content

On March 2, 2018, in Spanski Enterprises, Inc v Telewizja Polska, SA, the United States Court of Appeals for the District of Columbia Circuit (the Court of Appeals) affirmed the lower court decision holding a foreign broadcaster liable for copyright infringement for allowing viewers in the US to stream the copyrighted content.

The Appellant, Telewizja Polska, SA (TV Polska), is Poland’s national public television broadcaster, which owns and operates several Polish-language television channels. TV Polska entered into a licensing agreement (and later a settlement agreement) with the Appellee, Spanski Enterprises, Inc (Spanski), resulting in Spanski obtaining the exclusive North and South American broadcasting rights in respect of the channel TVP Polonia. Although TV Polska implemented a geoblocking system to attempt to prevent users from North and South America from accessing its website, in 2011 Spanski became aware that 51 episodes uploaded by TV Polska were not properly geoblocked, and were thus accessible by North and South American viewers. Spanski sued TV Polska in the US federal district court, asserting its exclusive rights under the US Copyright Act.

The lower court ruled that copyright infringement had occurred, and that the infringement was “not wholly extraterritorial” because the episodes at issue were viewed within the US. The court ordered TV Polska to pay Spanski $3,060,000 in respect of the infringement.

In affirming the lower court’s ruling, the Court of Appeals considered TV Polska’s argument that holding it liable for copyright infringement constituted an impermissible extraterritorial application of the US Copyright Act. The Court of Appeals set out the test for analyzing this question as follows.

1. Does the statute give a clear affirmative indication that it applies extraterritorially?
2. Notwithstanding its extraterritorial elements, does the case involve a permissible domestic application?

Answering the first question in the negative, the Court of Appeals held that, although TV Polska uploaded and digitally formatted the episodes in Poland, the violation of Spanski’s rights occurred on computer screens in the US. Accordingly, the Court of Appeals ruled that the case involved a permissible domestic application of the Copyright Act. The Court of Appeals thus affirmed the lower court’s judgment with respect to both liability and damages.

Summary By: Michael House