## Facts

- Spanski Enterprises, Inc. (SEI) held exclusive North and South American rights to publicly perform certain Polish-language television programs, including via the internet.
- Telewizja Polska S.A. (TVP), Poland’s public broadcaster and copyright owner, operated an online video-on-demand service.
- TVP used geoblocking to restrict access to some content in North and South America but failed to geoblock fifty-one episodes of several programs.
- Users in the United States could stream the episodes by visiting TVP’s website and selecting the episodes to play.
- SEI sued in the U.S. District Court for the District of Columbia for infringement of its exclusive U.S. public-performance rights.
- After a bench trial, the district court found TVP liable for willful infringement and awarded statutory damages of $60,000 per episode (total $3,060,000).

## Issues

1. Whether TVP “publicly performed” the episodes in the United States, despite user-initiated streaming, such that TVP engaged in the volitional conduct required for direct infringement.
2. Whether applying the Copyright Act to TVP’s streaming from abroad was an impermissible extraterritorial application, given that uploading and servers were located outside the United States.
3. Whether the district court abused its discretion by awarding statutory damages of $60,000 per episode based on willfulness and the evidence of harm and deterrence.

## Decision

- The D.C. Circuit affirmed the judgment for SEI in full.
- TVP directly infringed SEI’s exclusive right to publicly perform the episodes by transmitting the content to U.S. viewers through its online system.
- The infringement was a domestic application of the Copyright Act because the public performances occurred where the streams were received and viewed in the United States.
- The court upheld the finding of willfulness, relying in part on TVP’s knowledge of SEI’s territorial rights and TVP’s selective use of geoblocking.
- The statutory damages award of $60,000 per episode was within the statutory range and was not an abuse of discretion.

## Legal Principles

- A “public performance” includes transmitting a performance to the public, including via internet streaming to viewers in separate places and at different times.
- For direct infringement, volitional conduct is satisfied when a defendant uploads content and operates a system that automatically transmits the content to users upon request; a user’s click to start playback does not shift responsibility to the user.
- In extraterritoriality analysis, the location of the infringement turns on the statute’s focus and the protected right at issue; infringement of the public-performance right occurs where the performance is received and perceived.
- Evidence that a defendant knew of territorial restrictions and implemented partial access controls (such as geoblocking) can support a finding of willfulness.
- Statutory damages for willful infringement may be set within the statutory range based on willfulness, market harm, and deterrence, and are reviewed for abuse of discretion.

## Conclusion

The court held that a foreign broadcaster commits domestic infringement of U.S. public-performance rights when it streams copyrighted programs over the internet to U.S. viewers through a system it controls, and it affirmed a willfulness finding and $60,000-per-episode statutory damages award.


Spanski Enters., Inc. v. Telewizja Polska, S.A., 883 F.3d 904 (D.C. Cir. 2018)