Spanski Enterprises, Inc. v. Telewizja Polska, S.A.: How Far Is Too Far When It Comes To The Extraterritorial Reach Of US Copyright Law?

As a general matter, acts of copyright infringement that occur outside the jurisdiction of the United States are not actionable under U.S. copyright law. "The Copyright Act, it has been observed time and again, does not apply extraterritorially." Kirstaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351, 1376 (2013) (Ginsburg, J. dissenting). The general prohibition against the extraterritorial application of U.S. copyright law has been interpreted to mean that (1) purely extraterritorial conduct is not actionable in U.S. courts, but (2) extraterritorial conduct that crosses international borders and results in infringing conduct within the United States remains actionable under U.S. copyright laws. M. Nimmer & D. Nimmer, Copyright § 17.02 p. 17-28 (2015).

In Spanski Enterprises, Inc. v. Telewizja Polska, S.A., (Case No. 17-7051), the Court of Appeals for the District of Columbia will have to determine whether U.S. copyright law extends to situations in which the entirety of the defendant's conduct occurred outside the territorial limits of the U.S., and the only allegedly infringing conduct occurring in the U.S. resulted from activities undertaken by plaintiff's own lawyers.

The Spanski Enterprises case grows out of a dispute between the creator of Polish language television programming and its exclusive U.S. licensee. The defendant is Poland's government-owned national television network that produces and is the copyright owner of much of the programming televised over its network in Poland. The plaintiff is the exclusive U.S. distributor for various television programs produced by the defendant. In addition to televising these programs in Poland, the defendant operates a video-on-demand (VOD) website in Poland that allows viewers to stream the defendant's programs to their computers. The parties' distribution agreement included a provision in which the defendant agreed to impose a United States "geo-bloc" on its VOD streaming service to prevent U.S. consumers from streaming the programming appearing on the defendant's website. In violation of this provision, the defendant used versions of its programming that did not contain any geo-blocs, thus potentially allowing viewers in the U.S. to stream the programming to their computers in the U.S.

Though acknowledging that it could have sued the defendant for breach of the distribution agreement, the plaintiff elected instead to obtain copyright registrations for 51 of the programs and sue the defendant for infringing the plaintiff's public performance rights. Thus, the question presented to the district court was whether the defendant, acting entirely outside the U.S., could...