Copyright Isn't "Extra": Applying U.S. Law to Foreign Infringement Over the Internet

Where in the World Is Carmen Polska?

One of the really exciting things about the early days of true¹I.e., actual access to the internet, as opposed to leased-line services like Prodigy and CompuServe. internet access—roughly around the same time as the World Wide Web became widely adopted in the early 1990’s—was that it didn’t matter where everyone’s computers were. If the information you were after was on a computer in, say, Germany, all you’d notice is a slightly longer delay in retrieving the information.²All retrievals took time—your dial-up modem was operating at maybe 2400 baud—and delays caused by bad/lost packets were common enough that you probably didn’t notice that a delay was slightly longer than usual. You only refreshed if your browser was still struggling after you went to the bathroom and came back. My first browser was Lynx, so I didn’t actually care. Nobody worried very much about stuff like copyright law because no one with any valuable copyrights was participating, and everyone who was participating didn’t care about their copyrights. The connection speeds were so slow that all you could really do was share text, and people were mostly interested in sharing information.³Adoption of the World Wide Web really grew out of previous adoption of academic services like Gopher. Photographs were possible but slow and finicky, and video and even audio were pipe dreams. Here’s a good example: Strawberry Pop-Tart Blow-Torches research paper. I’ll bet this took a couple of minutes for Mosaic to load.⁴Note how the author is “overwhelmed” with 2000 hits.

“TV Polska.”

Getting Personal

Personal⁶There are two kinds of jurisdiction, personal and subject matter. Personal relates to a court’s power over a defendant. Subject matter relates to a court’s power to even hear particular types of cases. jurisdiction is a court’s power over a defendant. For historical reasons, it is tied to geography. You can always be sued where you reside⁷Technically, it’s where you’re a “citizen,” but human beings are citizens of the state of their primary residence. Corporations are citizens of both the state of their incorporation and the state of their headquarters. In addition, you can be sued in a state where you have “purposely availed yourself” of the privilege of acting there, but only if those acts give rise to the claim against you. Thus, if you live in Illinois and get into an accident in Indiana with someone from Kentucky, the Kentuckian can sue you in Illinois (where you live) and in Indiana (where the accident happened) but not in Kentucky (or anywhere else).
Alas, copyright infringement isn’t anything as easy as traffic accidents. If you are accused of infringing by distributing books in the United States, can you be hailed into any state in which a book was sold or offered for sale, even if you didn’t personally direct the book into that state? Good question! No one knows!⁸This is known as “stream of commerce” theory of jurisdiction, and you don’t really want to know more. What if you perform the copyrighted work over the internet? Are you essentially opening yourself up to nationwide jurisdiction? Maybe! Maybe not!⁹The law of personal jurisdiction developed when travel was a true burden—days or weeks of your time—and communications took a long time.
The foregoing applies with equal force to activities that cross national borders, and not just state borders—but with the practical complication that suing someone in another country is a lot harder than suing someone in another state. So the jurisdictional stakes are a lot higher.

Copyright Isn’t Extra(territorial)

Then there’s “extraterritoriality.” U.S. Copyright law doesn’t apply to acts of infringement that take place outside of the United States, even if everyone involved is a U.S. citizen (or otherwise subject to U.S. jurisdiction). This is easy when everything takes place outside the U.S. But what if an act of infringement takes place partially outside and partially inside the U.S.? Like, say, the Internet?
Let’s take a more straightforward example: a radio station in Canada but right on the U.S. border, and one of the songs it broadcast was licensed for Canada but not the U.S. Performance of that song in the U.S. would infringe copyright law, but whose? Canada’s or the U.S.’s? Logically, the U.S.’s because it would be odd to apply Canadian law to something that affected the U.S.
With some hiccups¹⁰Such as this one, where the Ninth Circuit mis-stated its own controlling precedent and held that U.S. law applied only if the entire act of infringement took place in the U.S., the law has settled that infringing acts that take place entirely outside of the United States are not covered by the U.S. Copyright Act. You’ll need to look to some foreign country’s laws to help.
What about the internet? What if the performance originated in one country far away, but was viewed in the United States?

Spanning the Globe

That was the question in Spanski Enterprises v. Telewizja Polska. The defendant (known as “TV Polska”) produced TV shows in Poland in Polish. It owned the copyright in those TV shows, but it had granted the Plaintiff the exclusive rights to perform those TV shows in the North and South America. A weird result of exclusive licenses is that even the copyright owner can’t exercise the licensed rights. Thus, TV Polska had to be careful not to perform its own programs in North and South America, or else it’d be liable to its exclusive licensee, the plaintiff Spanski.
This is easy when it came to broadcasting over the airwaves¹¹Assuming you’re not too close to a border! and through cable systems. But it was tricky when it came to TV Polska’s own website. In Europe (and notably in Poland), it had the right to perform its own programs on its own website. But the internet is accessible everywhere, including North and South America. The answer was geoblocking. Geoblocking is a bit crude. It operates by checking the would-be viewer’s IP address and comparing it with a commercially available database of IP addresses and their locations. Geoblocking is thus only as good as the third-party database. What’s more, it’s not terribly difficult to circumvent, if you’ve a mind to it. The assumption is that casual viewers don’t have a mind to it.
As part of the geoblocking system, TV Polska had to place territorial restrictions on the programs available on its website, so the geoblocking system would know what to block. For reasons that surpass understanding, TV Polska removed these restrictions from some of its programming. TV Polska said it was an accident. Certainly, if it was on purpose, it was a pretty stupid thing to do. It created a risk of serious liability while making the programs available only those North and South Americans who somehow knew the programs were now available. TV Polska could hardly have advertised the availability of the programs in North and South America!
TV Polska had only one real argument¹²It had two arguments, but the other one involved Aereo and is mind-numbing.: its actions took place in Poland and, thus, beyond the reach of the U.S. Copyright Act. The court rejected this argument because “the infringing performances—and consequent violation of Spanski’s copyrights¹³Wait. Whose copyrights? Oh, well. They’re effectively Spanski’s copyrights, at least for this lawsuit.—occurred on the computers screens in the United States on which the episodes’ ‘images’ were ‘shown’.”
This result is undoubtedly correct, but court made it a lot harder than it needed to be. The court appeared to believe that it has to locate discrete acts of infringement, which meant it got itself unnecessarily involved in the sticky problem of where broadcasted public performances happen. Is it where the broadcaster is located or where the viewers are? This leads to the court to say silly things like, “[W]e think Aereo is better read to establish only that a broadcaster and a viewer can both be liable for the same performance.” (Emphasis in original.) Well, no: the vast majority of viewers aren’t liable because their performance isn’t public. And none of the actual performances in the U.S. was public ones.¹⁴I’m being too hard on the court. It’s clear TV Polska’s lawyers were doing a good job of making these arguments seem plausible, such that the court took the bait enough to entertain them as though they were serious.

Choice of Law: Who Cares Less?

It would be much simpler to take a page from choice of law, and just look at what country has the most significant relationship with the infringing act. Choice of law is related to extraterritoriality at least to the extent that extraterritoriality should avoid overlap of different laws governing the same act of infringement. Either U.S. or Polish law should apply, not both.¹⁵Choice of law, however, wouldn’t allow gaps in coverage, i.e., acts of infringement covered by no law, whereas extraterritoriality in theory could allow for gaps. When the TV programs were viewed in the U.S., U.S. law makes more sense than Polish law. Yes, the act of infringement took place in Poland, where TV Polska uploaded and formatted the TV programs, and where it removed the geographic restrictions. But Polish law cares less about what happens in the United States (and vice-versa, I’m sure).
In some ways, this case is made easy by the court’s finding that TV Polska removed the geographic restrictions deliberately, i.e., with the goal of allowing performance to take place in the U.S. But what if it were accidental? Wouldn’t that be unfair? Not really. What law applies isn’t really that much about fairness. It’s about figuring out which law has the greatest connection. Fairness goes to jurisdiction, i.e., making someone travel to a foreign venue to defend themselves.
Well, what about personal jurisdiction? It didn’t come up in Spanski v. TV Polska, and I’m guessing it’s because TV Polska consented to personal jurisdiction in its exclusive license with Spanski (so it wasn’t an issue). That would explain the odd choice of Washington D.C. as the venue—it’s probably in their contract. But even without consent, TV Polska would have been subject to the jurisdiction of some state¹⁶But probably not Washington DC. because its actions were deliberate. The relevant test for personal jurisdiction is “purposeful availment” of a state in a way related to the claim. Removing geographic restrictions with the goal of permitting performance in the United States probably counts, even if TV Polska couldn’t be sure which state.
Weird side-note. Let’s say the court found application of the U.S. Copyright Act to be extraterritorial. Would TV Polska have “gotten away with it”? No. Jurisdiction and choice of law are two different things.¹⁷I suppose there’s some chance that TV Polska wouldn’t have been liable under Polish law? Thus, the U.S. court could have applied Polish copyright law to TV Polska’s actions. Indeed, it would have had little choice, if TV Polska really had consented to jurisdiction in Washington DC. It’s unusual, but not unprecedented for U.S. courts to apply foreign copyright law, though they try to avoid it.
The opposite is also true. Imagine two U.S. corporations, one owns the copyright in books being sold in Poland, and the other sells the books without a copyright. The lawsuit could certainly be brought in the other company’s state of incorporation of headquarters, but U.S. law would clearly not apply. A U.S. court would end up applying Polish law (though it would have the option of kicking the whole case over to Poland under the doctrine of forum non conveniens¹⁸Latin for “the forum is dang inconvenient,” but not necessarily for the parties, but for the witnesses and evidence in Poland.).

Not the Server Test

It’s no surprise that we should find Aereo at the center of Spanski’s confusion. Aereo should’ve been a straightforward meditation on causation, i.e., what does it mean to cause copyright infringement? Instead, the Supreme Court turned it into a case about the locus of broadcasted public performances. Take Aereo away, and Spanski probably doesn’t get appealed.
A final thought. This case has nothing to do with the “server test” I was blogging about not too long ago, though it might sound like it. And while some see a connection, it’s just a coincidence. Recall that the “server test” relates to whether you can be responsible for causing material stored on somebody else’s computer to be displayed on a customer’s screen (and is thus limited to display and can’t apply to performance). But that’s not the issue here at all, because Polska TV controls the server on which the programs were stored.
True, TV Polska’s arguments sound kind of like “server test” because they focus on where the programs were uploaded and formatted, which happened to be in the same country where the server was located. But, if, say, the server was located over the border in Germany, the result would be the same, and Germany wouldn’t enter into it. Conversely, if some of the programs at issue were viewed only in Canada and not in the U.S., then the court would have needed to apply Canadian law.
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.