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Practical Impact of D.C. Circuit's Ruling on Foreign Broadcasters and Copyright Liability
Broadcasters around the globe know that Americans want access to digital content and that they often ignore who provides it to them. For business reasons, tax reasons or to try to avoid liability under copyright law, many of these broadcasters intentionally do not set up operations in the United States. However, when these broadcasters transmit content for which they do not have authorization, they may be in violation of the copyright holder's rights.
Nonetheless, they have continued to do so because until recently there was an unanswered question as to whether U.S. copyright law could be used to protect against these actions. With the knowledge of this ambiguity in the law, coupled with the potential costs of U.S. litigation for both parties, broadcasters could rely on the fact that many copyright holders would be dissuaded from trying to enforcing their rights.
Recently — and likely to the dismay of many foreign broadcasters — in Spanski Enterprises v. Telewizja Polska S.A., 883 F.3d 904 (D.C. Cir. 2018), the U.S. Court of Appeals for the D.C. Circuit took up an issue of first impression for the federal appellate courts: Whether any extraterritorial limits of the copyright law would relieve the liability of foreign content disseminators that send their content into the United States. Unequivocally, the D.C. Circuit held that a content provider's location would not in and of itself relieve it of liability, and put copyright holders in a stronger position when trying to police unauthorized uses of their assets.
Case Background
Spanski was a dispute between a copyright owner and its licensee. The national public television broadcaster of Poland — defendant TV Polska — owned, operated and created content for several Polish-language television channels. The plaintiff, Spanski Enterprises, was a licensee of TV Polska, who after a previous dispute received the exclusive right to perform certain of TV Polska's content in North and South America.
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