By Thomas Long, J.D.
Polish public television network Telewizja Polska, S.A. ("TVP)" infringed copyrights held by content distributor Spanski Enterprises, Inc. ("SEI") by making 51 SEI-copyrighted television shows available for viewing in the United States via Internet streaming, the federal district court in Washington, D.C., has determined. SEI established that it was the exclusive licensee and owner of valid copyrights over the shows, with the exclusive right to distribute and display the programming throughout North and South America. SEI also showed that TVP’s infringement was volitional and intentional, and not caused by a failure of its website’s geoblocking system (Spanski Enterprises, Inc. v. Telewizja Polska, S.A., December 2, 2016, Chutkan, T.).
Programming at issue. TVP owned and operated 12 national and 16 regional Polish-language TV channels, including the channel TVP Polonia. TVP distributed content, including TVP Polonia shows, through its website at www.tvp.pl in Poland. Some content was offered for free; some on a pay-per-view basis. Although TVP created all TVP Polonia content and owned copyrights in the material, it licensed some of the content to other distributors, including SEI. Canada-based SEI distributed Polish-language TV and radio programs in North and South America via satellite, cable TV, and the Internet.
License agreement. On December 14, 1994, the parties entered into a license agreement granting SEI the exclusive right to one-time use of TVP Polonia shows in its programming in North and South America ("the Territory"). A 1999 addendum gave SEI the exclusive right to distribute, broadcast, and display the content over the Internet in the Territory. A 2009 agreement settling litigation between the parties in the Southern District of New York specified that SEI had the exclusive right to distribute, broadcast, perform, and display TVP Polonia content, including over the Internet and mobile devices, in the United States. In 2012, SEI obtained U.S. copyright registrations for 51 separate TVP Polonia episodes.
Geoblocking. TVP used a geoblocking system to prevent user access in the Territory to on-demand programming offered on its website. The automated system blocked access in the Territory by default; for an IP address to gain access to TVP’s video on demand, there would have to be either a failure of the system or a volitional step taken by a TVP employee to grant access to the content, the court found.
Infringement. SEI’s president, its attorney, and a website development and monitoring contractor all testified that they were able to access TVP content via TVP’s website—including the registered TV Polonia episodes—in Canada and the United States on a number of occasions between December 2011 and March 2012. The court accepted the witnesses’ testimony that they did attempt to circumvent TVP’s geoblocking; SEI presented no evidence that they had made such attempts. Accordingly, the court found that SEI established by a preponderance of evidence that the 51 SEI-copyrighted episodes were available and viewed in the United States via TVP’s site. This conduct constituted infringement of SEI’s public performance right under the Copyright Act.
Volitional and willful conduct. TVP provided only speculation and "hypothetical" reasons as to why its geoblocking technology might not have worked. Its expert witness admitted that there was no evidence of a system failure of the database of IP addresses. The expert also conceded that the database was 99.8% accurate on a country basis. The court found that TVP acted volitionally in infringing SEI’s copyrights because, since the SEI witnesses actually viewed TVP Polonia content in the United States, it followed that TVP employees must have taken the required volitional actions to remove territorial restrictions. In addition, screenshots of the TVP workflow system showed that TVP routinely made copies of shows in multiple formats, including one with no territorial restriction. There also was evidence that TVP employees had removed geoblocked episodes from distribution, manipulated workflow logs, and then republished the episodes in unrestricted format.
Equitable estoppel. The court rejected TVP’s assertion that SEI was equitably estopped from pursuing its copyright infringement claims. TVP employees were aware that they infringed SEI’s copyrights, the court said. There was no evidence that SEI had advance knowledge that its copyrights were being infringed. Rather, the evidence showed that SEI discovered the infringement after TVP employees removed the territorial restrictions, and that after discovering this, SEI acted to register the shows in the United States.
The case is No. 1:12-cv-00957-TSC.
Attorneys: Nathan J. Muyskens (Loeb & Loeb LLP) and Walter Earl Steimel, Jr. (The Steimel Law Group) for Spanski Enterprises, Inc. Charles B. Wayne (DLA Piper LLP) for Telewizja Polska, S.A.
Companies: Spanski Enterprises, Inc.; Telewizja Polska, S.A.
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