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Case number 17-7051, Spansky Enterprises, Inc.

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vs. Tolongia, Polsky S.A.

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Appellant.

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Mr. Deutsch for the appellant, Mr. Daven for the appellee, Ms.

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Barbera for the amicus curi.

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May it please the court that my name is Andrew Deutsch.

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I am speaking on behalf of the appellant, and I would like to reserve five minutes before the vote.

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My client is the National Television Network of Poland.

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It is the creator of the content that is at issue in this copyright infringing case.

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It has uploaded that content along with thousands of other programs that it has produced to a Polish video-on-demand system which serves the 38 million citizens of Poland who pay for the operations of TVP through taxes and license fees.

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The question presented in this case, at its essence, is whether, because someone in the United States, in this case the plaintiff's lawyers, was able to access that system and stream to themselves some of this programming.

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Has my client committed an infringement?

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Well, the lawyers in the United States could not have done that if your client had not eliminated the geo-blocking mechanism that was in place.

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It wouldn't have happened.

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It wouldn't have happened if it had never been geo-blocked.

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So that's not an accurate statement of the issue before us.

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No, I disagree, Your Honor.

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We take as a given because it was found by the district court that there was no geo-blocking.

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It doesn't matter for purposes of this case whether there was never any geo-blocking and my client breached a contract with the plaintiff or my client removed it or the plaintiff evaded geo-blocking.

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Their position is, if they could see it in the United States, no matter how they could see it in the United States, my client committed an infringement in the United States.

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Let me see if we can get at the issue this way.

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Suppose this had all occurred in the United States.

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Suppose your client was not a Polish broadcaster, but an American broadcaster.

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All right?

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And all the other circumstances are the same.

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Do you have any doubt that this would have violated the copyright laws?

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I don't know.

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I don't think a hypothetical could have occurred because both parties couldn't have owned copyright in the same material at the same time in the United States.

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I'm not trying to evade the question, but I'm trying to understand what the point is the court is seeking.

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Well, go ahead then.

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I want to go, there are many issues in this case, but I want to go directly to extra territoriality because I think it's at the court.

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There's no question that everything my client did took place in Poland.

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They uploaded the programs there and they undertook the formatting that the district court found to be infringing.

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But the performance occurred in the United States.

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No, Your Honor, that's not correct.

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This is the error made by the government.

[00:03:40] Speaker 06:
By the government?

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By the government.

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I guess by me too, right?

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What Congress was concerned about with the copyright was the public performance, correct?

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No.

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What Congress was concerned about, and the Supreme Court said this very clearly in Areo, that when it amended these particular provisions, it was to bring cable television systems within the definition of someone who performed.

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Areo says that perhaps five times in the opinion.

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So we have a definitive description of what Congress's purpose was.

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And the way that Congress did this was by the fact, by concluding.

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But the court, I mean, that isn't the way we read Supreme Court cases.

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Yes, you're totally right.

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The court was very sensitive in that case to the particular circumstances of Mario.

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But it interpreted the statute that's its issue here.

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It interpreted the word performance.

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It did indeed, Your Honor.

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Yeah, and that's the principle of the case that applies here.

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The principle of what the Supreme Court found in Areo and what is apparent from the legislative history of these very provisions, you can see it at page 63 of the House Judiciary Report, is that there's not one unitary performance.

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There are a series of successive performances.

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which Congress determined would occur between the singer who stands on a platform and sings a song and the viewer who turns on a TV or computer and sees that.

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Each of them are a separate performance.

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The error of the district court and the error of the plaintiff and the government is in conflating these into one single profession.

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I suppose in this case, the geo-blocking was eliminated, but no one in the United States accessed it.

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No one.

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Is there still a performance?

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Yes.

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Where?

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In Poland.

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But no one's watching it.

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Your Honor, if you take a look at the legislative history, which is... Wait, wait.

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Don't answer my question, a fact question, by telling me about legislative history.

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Your theory is there's two performances, right?

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One in Poland and one in the United States, correct?

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Yes.

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Okay, so I said if no one in the United States is watching, where's the performance?

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Congress said, and this is again, I'm trying to tell you because I'm not trying to make my own definition of performance or even use a common sense definition of performance.

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I'm using what Congress said when it enacted this.

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It said a broadcasting network is performing when it transmits his or her performance, and any individual is performing whenever he or she communicates the performance by turning on or receiving something.

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That's at page 63 of the House.

[00:06:30] Speaker 06:
Well, doesn't that say there's a performance in the United States?

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That says that when the SEI lawyers turned on their computer, they were conducting a performance in the United States.

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But it doesn't say that my client was performing in the United States, because a broadcasting network is performing when it transmits a performance.

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The transmission takes place under the definition of transmit as well, when a signal is sent, not when it is received.

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And that is the way... Didn't Ariel reject that very argument?

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No, not at all.

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Ariel relied on that argument in dealing with the first... Ariel made two, the defendant in Ariel, made two arguments.

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One, that it didn't perform.

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Right.

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And two, that it didn't perform publicly.

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These issues arose on the first leg of that.

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Was it performing when its users received signals that had been taken out of the air and relayed to ARIO's antenna?

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The Supreme Court, yes it did, said yes it did, because it's just like the cable systems that Congress was going after in 1976.

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But what the Court did say was that ARIO performs if all it does is enhance the ability of its viewers

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to receive a signal.

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Where does that performance take place?

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It doesn't take place in the living rooms of the people who watch it.

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It takes place at the headquarters of area.

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Where did the performance of TVP take place?

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It made it possible to see these signals and hear these signals at its headquarters in Warsaw, not in the offices of Lowe & Lowe.

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So you say in your brief, I'm looking at page 38,

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You say, quote, this is consistent with what you're saying here, acts committed abroad cannot form the basis for a US copyright infringement suit, period.

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And then you cite two cases, Suba Films and Eye Circuit, and you think that supports that view?

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I do.

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Would I be wrong if I said that it said that that was involving distributing copyrighted films abroad?

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You would not be wrong, that's correct.

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Okay, so that's not this case.

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It is the principle, but it's a different right.

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Nor is the other case you cite.

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or music.

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That's the same thing.

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It's also not a public performance.

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That's distributing copyrighted materials abroad.

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So can you cite any case, and maybe there is one, I don't mean to be suspicious, but can you cite any case at all that says that if

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that imposing liability in a situation like this, where your client acts abroad, but intends to cause a performance, unlawful performance in the United States,

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Is a extra-territorial application of law not a domestic one?

[00:09:29] Speaker 03:
Do you have one case for that?

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I disagree with the intent issue.

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I just asked you whether you have a case.

[00:09:33] Speaker 03:
No, Your Honor.

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The government itself says this is a question of first impression.

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And we agree that to that extent, it is.

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But we think we're supported by the language of the history and how a performance is defined.

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We're supported by the legislative history that the Supreme Court relied on in aerial.

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where it said there's not one performance in this instance.

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There are multiple performance.

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We believe we are supported by the fact that there is not a hint in this legislative history that the government intended to say a performance only occurs where the public is located.

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There's nothing whatsoever.

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There's no case cited by the government to support that.

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And we know what the Congress's purposes in enacting these amendments were because ARIO tells us that.

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Let me ask you about two hypotheticals that the government raises in its brief.

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They say if you're right, U.S.

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copyright holders wouldn't have any protection against pirates who steal copyrighted materials and broadcast them to the United States from abroad.

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Right?

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No, that's not true.

[00:10:42] Speaker 03:
It's not true?

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That's not true.

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If these infringing acts are committed abroad, a pirate is a criminal in the country where they are acting.

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And in the government and the plaintiffs in the amici in this case have all prosecuted or worked with foreign governments to prosecute pirates who are abroad.

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What about their next example?

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A San Diego TV station could avoid licensing fees simply by moving to Tijuana.

[00:11:07] Speaker 03:
I think that there's probably, although it's not of course our case, I think there's probably some difference between a network that sits and broadcasts radio waves over the air into the United States border, but that's not our case.

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The question here is whether a company sitting in Poland doing nothing more than setting up a video on demand system in Poland for polls.

[00:11:30] Speaker 06:
But you keep saying nothing more, and that's not the record in this case.

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The record in this case is not that the TVP did quote nothing more.

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The record in this case, I know you challenged these, but we review these fact findings for clear error.

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So the record in this case is that TVP intentionally eliminated

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the geo-blocking provision.

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I understand that, Trump.

[00:12:02] Speaker 06:
But isn't that significant?

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It is not.

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It is, at most, it would be the same if it never had geo-blocking.

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It's geo-blocking, obviously.

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The question comes now.

[00:12:12] Speaker 06:
Explain that to me.

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It would be no different from the perspective of the argument being raised against my client if it had no geo-blocking.

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Why is that?

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Because the default position was that everything would be geo-blocked, right?

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So somebody at TVP had to actively eliminate the geo-blocking.

[00:12:30] Speaker 03:
The theory of infringement here is not that there was geo-blocking or that there wasn't.

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It's that it was able to be received in the United States.

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Because TVP eliminated the geo-blocking.

[00:12:40] Speaker 03:
But the cause doesn't matter, Your Honor.

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It doesn't matter in any respect because this, according to both parties on the other side, is a strict liability tort.

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It doesn't matter what you intend.

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And the same principle has to apply whether there was no geoblocking, geoblocking was taken away, geoblocking failed for a technical reason, or geoblocking was evaded.

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In all instances, the performance, Foreman says, are exactly the same.

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And there's nothing in the Copyright Act to say that the results should be different.

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We say that no matter which of those permutations you have,

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The consequence is that the only performance that takes place is in Poland.

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If you alter the format in Poland, it doesn't make it a United States performance.

[00:13:25] Speaker 03:
And I would point out that this does create serious issues of international conflict.

[00:13:30] Speaker 03:
What my client did in Poland is not a violation of Polish law.

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And we are saying, however, what's done in Poland is a violation of US law, and that Polish copyright owner can be prosecuted in the United States.

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That is the area in which we have to find a clear indication that Congress intended to reach this conduct.

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And the plaintiffs and the government have indicated no evidence.

[00:13:55] Speaker 06:
So to be sure I totally understand you, could you just once again state as clear as you can why setting aside the extraterritorial issue, which is a separate issue, why the case isn't controlled by ARIO?

[00:14:07] Speaker 03:
It's not controlled by ARIO, did you say?

[00:14:10] Speaker 06:
Yeah.

[00:14:11] Speaker 03:
It's not controlled.

[00:14:13] Speaker 03:
I mean, I don't believe ARIO in that sense is relevant.

[00:14:16] Speaker 03:
Set aside the extraterritorial.

[00:14:18] Speaker 03:
Okay, the question is, is it a performance?

[00:14:19] Speaker 03:
Yeah, exactly.

[00:14:20] Speaker 03:
That's the next question.

[00:14:21] Speaker 03:
Yes.

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We don't think so because my client was a passive actor and the active actors here were the plaintiff's own attorney.

[00:14:31] Speaker 06:
But the district court's findings are to the contrary.

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This is not a fact.

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We are not disagreeing with those fact-finders on this issue.

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There's no question that the district court found that the plaintiff's own attorneys, suspecting that my client had reached its contractual obligation to GeoLock, reached out to this system, initiated the transfers, received the transmissions, and reported.

[00:14:56] Speaker 04:
But what did the district court find about what TVP did with respect to the content?

[00:15:00] Speaker 04:
The district court found that my client had been... That's critical under area, right?

[00:15:04] Speaker 04:
I don't think so.

[00:15:05] Speaker 04:
That's what I was referring to before.

[00:15:07] Speaker 04:
The argument you're making here is the very argument that was made in Areo, that there's no performance by TVP because

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The real performance took place in the United States when they flipped on and tried to access the DOD.

[00:15:23] Speaker 03:
But Arios says that there's performance on both sides, right?

[00:15:26] Speaker 03:
Arios said that in that specific case, under the facts of some of an entity that was essentially a cable TV network, that it fell directly into Congress, as intended.

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But it also reserved other countries.

[00:15:40] Speaker 04:
What did the district court find were the actions of TVP here that constituted performance?

[00:15:47] Speaker 03:
The way the district court had it was that there was a performance that started in Poland.

[00:15:52] Speaker 03:
And what was done?

[00:15:54] Speaker 03:
In Poland, that this content was uploaded and a geoblock was removed.

[00:15:59] Speaker 03:
That was the alleged infringement.

[00:16:01] Speaker 03:
To agree with that, you have to assume, which no case has ever held, that the United States copyright law requires geoblocking.

[00:16:09] Speaker 06:
And if you don't do that, you're infringing.

[00:16:11] Speaker 06:
The copyright infringing performance occurred in the United States.

[00:16:15] Speaker 03:
We disagree with that, Your Honor.

[00:16:19] Speaker 03:
It isn't compelled.

[00:16:20] Speaker 06:
But that's where it in fact happened.

[00:16:22] Speaker 03:
No, Your Honor.

[00:16:23] Speaker 03:
A performance occurred in the United States, but it was the performance of the plaintiff's attorneys.

[00:16:28] Speaker 03:
You can't ignore the very clear legislative history in this case where Congress said that there are successive performances, not one.

[00:16:36] Speaker 03:
and that the broadcaster's performance occurs when it transmits, then obviously it also occurs where it transmits.

[00:16:43] Speaker 03:
Again, I refer the Court to page 63 of the House report, where Congress has exactly what it intended to do in amending this language.

[00:16:52] Speaker 03:
And since Congress is, you can't apply these principles extraterritorially unless there is a clear intention on Congress's part to do so, since everyone agrees the Copyright Act doesn't apply extraterritorially.

[00:17:06] Speaker 03:
And since Congress said there is not one performance, there are multiple performances.

[00:17:23] Speaker 05:
Good morning, Your Honor.

[00:17:24] Speaker 05:
My name is Jonathan Saban.

[00:17:25] Speaker 05:
I'm appearing in Vivi Peli's Fancy Enterprises, Inc.

[00:17:29] Speaker 05:
As Your Honor noted, there clearly were actions, volitional actions, by TVP in Poland.

[00:17:38] Speaker 05:
There were at least four of them.

[00:17:40] Speaker 05:
One, they selected the material.

[00:17:42] Speaker 05:
And it was a limited selection.

[00:17:44] Speaker 05:
Some of the material they selected, they owned the copyrights to worldwide.

[00:17:49] Speaker 05:
Some of the material they selected, they did not.

[00:17:51] Speaker 05:
They intentionally selected all of this upload to this server.

[00:17:55] Speaker 05:
Two, with respect to material that they did not own the copyright, or in the United States, they intentionally created formats that were un-geoblocked.

[00:18:05] Speaker 05:
The only purpose of which was that those files could be viewed in the United States.

[00:18:09] Speaker 06:
Well, but their argument is that their violation occurred in Poland, and the statute doesn't have any extraterritorial application.

[00:18:15] Speaker 05:
That's correct.

[00:18:15] Speaker 05:
That's their argument, Your Honor.

[00:18:17] Speaker 05:
The violation is, Your Honor, notice the infringement was in the United States.

[00:18:21] Speaker 05:
The public performance was in the United States.

[00:18:24] Speaker 05:
Their transmission, their fourth volitional act,

[00:18:26] Speaker 05:
commenced in Poland but ended in the United States.

[00:18:30] Speaker 05:
Transmission is not static.

[00:18:32] Speaker 05:
This is just the same as a TV broadcaster sitting in Tijuana broadcasting a signal.

[00:18:39] Speaker 05:
Yes, the signal initiates in Tijuana, but it's received in the United States.

[00:18:44] Speaker 05:
The counsel for TVP is incorrect that there are no cases.

[00:18:49] Speaker 05:
Yes, the government said this was a case of first impression in the circuit courts.

[00:18:54] Speaker 05:
There are numerous district courts that have dealt with this.

[00:18:59] Speaker 05:
TVP is attempting to stand SUBA Films on its head.

[00:19:03] Speaker 05:
As Your Honor knows, what SUBA Films held was that if the only infringing act was abroad, US copyright law doesn't count, because the only act in SUBA Films was the authorization in the United States.

[00:19:18] Speaker 05:
And authorization is not in itself a violation of any of the rights under Section 106 of the Copyright Act.

[00:19:25] Speaker 05:
It was the sale of the videos abroad.

[00:19:27] Speaker 05:
All infringement was abroad.

[00:19:29] Speaker 05:
The opposite, however, and this is the opposite, is where there's an action abroad, yes, but the infringement occurs in the United States.

[00:19:40] Speaker 05:
In this case, the public performance was in the United States caused, in large part, by the actions abroad.

[00:19:48] Speaker 05:
There are at least three different district court cases that have dealt with this type of circumstances.

[00:19:54] Speaker 05:
They're cited in our briefs.

[00:19:55] Speaker 05:
But LA News, where a Canadian broadcaster broadcast film video of the rioting in LA after the Rotten King acquittal.

[00:20:05] Speaker 05:
And the broadcast bled over into the United States.

[00:20:08] Speaker 05:
The district court had no problem saying, yes, the action was in Canada.

[00:20:13] Speaker 05:
The broadcast emanated from Canada.

[00:20:16] Speaker 05:
it was received in the United States, I think in that case by 7,000 homes, and this constituted infringement in the United States.

[00:20:25] Speaker 05:
What do you think about Mr. Deutsch's distinction at Ariel?

[00:20:30] Speaker 05:
I think it's a much too narrow reading of area.

[00:20:34] Speaker 05:
Your Honor, yes.

[00:20:34] Speaker 05:
Well, how do you read the case?

[00:20:37] Speaker 06:
Do you think the case applies here, setting aside the extraterritorial aspect of it?

[00:20:41] Speaker 05:
Yes, Your Honor, at least in two ways.

[00:20:43] Speaker 05:
Tell us why.

[00:20:44] Speaker 05:
First, I think that the Supreme Court did deal with the issue of what is a public performance when there's a transmission.

[00:20:51] Speaker 05:
And I think that there is no question that this fits squarely within the facts of area.

[00:20:56] Speaker 06:
Well, it can't fall within the facts there.

[00:21:01] Speaker 06:
You mean the interpretation of the statute.

[00:21:04] Speaker 05:
That's correct, Your Honor.

[00:21:05] Speaker 05:
I think that obviously the facts are somewhat different, but they're materially, for purposes of analysis, the same.

[00:21:14] Speaker 05:
That what you had is an organization transmitting copyrighted material

[00:21:20] Speaker 05:
and the transmission causing the public performance.

[00:21:24] Speaker 05:
That's what happened in Areo.

[00:21:25] Speaker 05:
That's exactly what happened here.

[00:21:27] Speaker 05:
Mr. Deutsch is trying to... And what about the language that the performance also occurred in Poland?

[00:21:35] Speaker 05:
Your Honor, that is sort of it.

[00:21:36] Speaker 05:
Needles dancing on the head of, or angels dancing on the head of a pen.

[00:21:39] Speaker 05:
Well, that's what we do at the DC Second.

[00:21:40] Speaker 05:
I know, Your Honor, but whether there's a performance in Poland, one would depend on Polish law, which I don't pretend to be an expert at, to

[00:21:51] Speaker 05:
The only time there's a performance is, at least in my view, is if there's a transmission.

[00:21:57] Speaker 05:
If it just resided on itself.

[00:21:58] Speaker 06:
Well, the transmission originates in Poland.

[00:22:01] Speaker 05:
Yes, it originates in Poland.

[00:22:02] Speaker 06:
So I thought you would have said the violation occurs when it's received and performed.

[00:22:07] Speaker 05:
That is correct, Your Honor.

[00:22:08] Speaker 05:
There has to be a transmission.

[00:22:10] Speaker 06:
The only way... So it's your point that, yes, there is a performance in Poland, but that's not what they're being held liable for.

[00:22:17] Speaker 05:
Certainly that is true, but the transmission itself is never, if it's transmitted to the United States, never just in Poland.

[00:22:26] Speaker 05:
Because let's assume for a moment, Uendo, that no one had sought to view the film at all.

[00:22:34] Speaker 05:
I think this was your honor's example.

[00:22:35] Speaker 05:
And it just resided on the server.

[00:22:37] Speaker 05:
On their website, yeah.

[00:22:39] Speaker 05:
It just resided on the website.

[00:22:41] Speaker 05:
I think I would have to agree there's no public performance, because there's no transmission to the public.

[00:22:46] Speaker 05:
It's not received by the public.

[00:22:47] Speaker 05:
It's not viewed by the public.

[00:22:49] Speaker 05:
It was uploaded and never viewed.

[00:22:53] Speaker 05:
Now we get to the situation where someone has requested that content.

[00:23:00] Speaker 05:
Now there's a transmission.

[00:23:02] Speaker 05:
The minute there's a transmission, and if it's into the United States, there's a viewing in the United States.

[00:23:08] Speaker 05:
So there is a public performance in the United States.

[00:23:11] Speaker 05:
Whether that transmission itself is a public performance in Poland, frankly, I'm not sure the answer under Polish law.

[00:23:20] Speaker 05:
Because about a new US law, certainly that transmission into the United States that causes the display on to the public is a public performance.

[00:23:33] Speaker 07:
Now, your friend on the other side cites the language from page 63 of the House Report as supporting his view of performance occurring at transmission.

[00:23:50] Speaker 07:
And, you know, the court in Areo quoted that language at length and cited it.

[00:23:57] Speaker 07:
So what's your view of what that language says or doesn't say?

[00:24:05] Speaker 05:
I absolutely agree, Your Honor, that the performance occurred at the transmission into the United States.

[00:24:12] Speaker 05:
Again, looking at this just under U.S.

[00:24:14] Speaker 05:
copyright law.

[00:24:15] Speaker 05:
What I believe the House was saying and what Ariel was saying is the mere act of transmission is itself a public performance.

[00:24:27] Speaker 05:
But keep in mind, Your Honor, if I may, that transmission was into the United States.

[00:24:34] Speaker 05:
Let's assume for a moment a hypothetical where that transmission was to someone in Poland.

[00:24:39] Speaker 05:
There would have been a transmission, but that certainly wouldn't have been a public performance under U.S.

[00:24:45] Speaker 05:
law.

[00:24:46] Speaker 05:
The minute that transmission is in the United States, as Your Honor said, there's no difference between what they were doing and what they would have been doing if they resided in the United States.

[00:24:58] Speaker 05:
The technology was the same.

[00:24:59] Speaker 05:
The intent was the same.

[00:25:00] Speaker 05:
What they did was, you know, removal of geo-blocking, intentional transmission of copyright programs to which they did not own the copyright in the territory.

[00:25:09] Speaker 05:
There's no difference.

[00:25:11] Speaker 07:
Let's assume for a moment that there is no geo-blocking technology, or this case arose before there was geo-blocking technology.

[00:25:22] Speaker 07:
What then?

[00:25:23] Speaker 05:
Your Honor, I think there would be liability under the Copyright Act, just in the same way that there has been liability for broadcasting to the United States in the LA News case.

[00:25:35] Speaker 06:
Well, if there hadn't been blocking technology, why would anybody in Canada have entered into an exclusive broadcast contract?

[00:25:44] Speaker 06:
I mean, it would have been impossible to make that happen, right?

[00:25:49] Speaker 05:
I'm not sure I understand your question, Your Honor.

[00:25:51] Speaker 06:
Well, if there isn't geo-blocking,

[00:25:53] Speaker 06:
Why would a Canadian company pay for the exclusive rights to broadcast in the United States if... Now I understand your argument, Your Honor.

[00:26:05] Speaker 05:
Certainly you would lessen any economic incentive... Yeah, down to zero.

[00:26:09] Speaker 05:
I'm sorry, Your Honor?

[00:26:10] Speaker 05:
Like down to zero.

[00:26:12] Speaker 05:
Very possibly.

[00:26:13] Speaker 05:
Why would you pay for that?

[00:26:14] Speaker 05:
Well, you probably would not.

[00:26:19] Speaker 05:
It would certainly lessen the value of territorial rights in the United States.

[00:26:23] Speaker 05:
And I guess that is one of the economic consequences of someone doing something like this.

[00:26:33] Speaker 05:
In theory, what you could do is

[00:26:39] Speaker 05:
One of the things TVP could have chosen to do without geo-blocking is simply not put on a server content to which it didn't have worldwide rights.

[00:26:50] Speaker 05:
I mean, that is certainly an easy way to avoid liability.

[00:26:53] Speaker 05:
If you're putting something up for viewing to the world, it should only be something that you have rights throughout the world, or alternatively, you can geo-block it.

[00:27:04] Speaker 05:
But it is certainly a volitional act and intentional if you put up rights available, content available to the world where you don't have rights and intentionally remove the geo blocking.

[00:27:14] Speaker 04:
I have a question that goes to the statutory damages issue.

[00:27:18] Speaker 04:
Can you help me understand how the log

[00:27:21] Speaker 04:
51 episodes was created.

[00:27:24] Speaker 04:
Was the log for each of the episodes created after the SCI lawyers had viewed the episode, or was it after they saw it on the TV guide that it was going to be streamed?

[00:27:37] Speaker 05:
I think the log you're talking about was created, I believe, by Mr. Barnett.

[00:27:42] Speaker 05:
that is the exhibit that you were talking about.

[00:27:45] Speaker 05:
I believe that it was a combination thereof, Your Honor, that what happened was in anticipation of the episodes being shown, initial log was created, but then it was checked with respect to each of the episodes when they were in fact broadcast.

[00:28:03] Speaker 05:
For all 51?

[00:28:06] Speaker 05:
Yes, I believe that is the testimony.

[00:28:09] Speaker 05:
Certainly the testimony of Mr. Glatkowski was that he had viewed all 51 episodes.

[00:28:17] Speaker 05:
And I believe Mr. Barnett's testimony was also, and he cited that in our brief, as a matter of fact.

[00:28:29] Speaker 05:
He said, Mr. Barnett said, I streamed each of them to make sure they were available.

[00:28:33] Speaker 05:
This was with respect to the 51.

[00:28:35] Speaker 05:
And that was in his testimony at A480-81.

[00:28:41] Speaker 04:
Mr. Barnett's testimony.

[00:28:42] Speaker 05:
That's correct, Your Honor.

[00:28:46] Speaker 05:
And another site for that is A1132-33 in the record sites.

[00:28:54] Speaker 05:
Certainly, with respect to the 15 episodes, there is more than sufficient evidence in the record that on any standard review of the district court, there's no clear error here.

[00:29:06] Speaker 05:
And as well as on statutory damages, Your Honor,

[00:29:13] Speaker 05:
Mr. Deutsch said in his brief that it's a de novo review of the willfulness finding, a recklessness finding.

[00:29:20] Speaker 05:
Just to respond to that, I believe that's clearly incorrect.

[00:29:24] Speaker 05:
Under the Supreme Court rule, willfulness is now a question for the jury.

[00:29:29] Speaker 05:
It's a question of fact for statutory damages.

[00:29:32] Speaker 05:
The only reason this was heard by the bench was because of the Foreign Sovereign Immunities Act, where there was no jury, so that the judge was sitting as the pioneer of fact.

[00:29:43] Speaker 05:
and any willfulness determination would have to be reviewed as a finding of fact.

[00:29:49] Speaker 06:
Doesn't that create a problem for the extraterritorial issue?

[00:29:56] Speaker 06:
In other words, your position is that this was not extraterritorial because the performance was in the United States, right?

[00:30:03] Speaker 05:
That's correct.

[00:30:04] Speaker 06:
Yet, if the defendant here

[00:30:07] Speaker 06:
had no right to a jury, because it's a foreign country.

[00:30:11] Speaker 05:
No, Your Honor.

[00:30:12] Speaker 05:
It had every right to a jury.

[00:30:14] Speaker 05:
It elected not to, under the FSIA, the Foreign Sovereign Committee elected not to have a jury.

[00:30:20] Speaker 05:
I see.

[00:30:20] Speaker 05:
So it chose not to have a jury?

[00:30:21] Speaker 05:
It chose not to have a jury, Your Honor.

[00:30:24] Speaker 05:
So there is no contradiction.

[00:30:27] Speaker 05:
I believe I'm out of time, and I want to make sure the government is afforded an opportunity.

[00:30:32] Speaker 05:
So are there any questions?

[00:30:34] Speaker 06:
No, I don't think so.

[00:30:35] Speaker 05:
Thank you, Your Honors.

[00:30:36] Speaker 06:
So we'll hear from the government.

[00:30:50] Speaker 00:
May I please the court?

[00:30:51] Speaker 00:
Megan Barbaro on behalf of Amicus the United States.

[00:30:55] Speaker 00:
If the court accepts TVP's argument that streaming copyrighted material from servers located abroad is not infringement of the public performance right, a company could just move its servers over the border and stream to millions of American viewers.

[00:31:11] Speaker 00:
And that's just what every criminal enterprise would do.

[00:31:15] Speaker 00:
The United States' concern in this case is that TVP's argument, if accepted by this court, would be a roadmap for criminal pirates to locate their servers abroad and reach... Okay, we got that, but give us your statutory argument.

[00:31:29] Speaker 06:
I... Explain to us, I mean, obviously I get your policy argument, but how do you ground that in the statute?

[00:31:38] Speaker 00:
I think it would be helpful to look at the statutory.

[00:31:43] Speaker 00:
Both the case law and the statutory definitions support our argument that this is a domestic application of the public performance right.

[00:31:52] Speaker 00:
With respect to the statutory definitions.

[00:31:55] Speaker 06:
Do you have a case other than district court decisions?

[00:31:57] Speaker 06:
There's nothing, right?

[00:31:59] Speaker 00:
The Supreme Court's decision in area, which doesn't deal with the extraterritoriality analysis, but with respect to internet streams of copyrighted material, makes clear that both the broadcaster and the viewer are performing.

[00:32:15] Speaker 00:
That is, the broadcaster performs when it transmits copyrighted material and that performance occurs

[00:32:22] Speaker 00:
when the audience enjoys the work, that is, when the images are shown and the audio is heard.

[00:32:29] Speaker 00:
Now that occurs when material is streamed over the internet where the audience is located, here that was in the United States.

[00:32:37] Speaker 00:
And we know that from both the Supreme Court's decision in ARIO and the statutory definition of perform.

[00:32:44] Speaker 06:
So ARIO performed and its customers performed.

[00:32:47] Speaker 00:
That's correct.

[00:32:49] Speaker 00:
Areo's argument was that, you know, it's only our subscribers who are performing.

[00:32:55] Speaker 00:
We're not performing.

[00:32:56] Speaker 00:
We're just streaming material over the internet.

[00:32:58] Speaker 00:
And the Supreme Court rejected that.

[00:33:01] Speaker 00:
And the parties, I didn't understand them to be disputing, at least before the argument today, that if TVP servers were located in the United States and engaged in exactly the same conduct, that when it transmitted material, that is,

[00:33:15] Speaker 00:
In response to a user's request, the user says, I'd like to see a particular show.

[00:33:22] Speaker 00:
TVP's servers transmit over the internet that copyrighted work so that the user can enjoy it.

[00:33:31] Speaker 00:
And when we're looking at turning to the extraterritoriality analysis, if we look to

[00:33:37] Speaker 00:
the RJR Nabisco and the Morrison test, the question is really what was Congress's intent?

[00:33:43] Speaker 00:
What was the conduct that Congress was trying to regulate?

[00:33:47] Speaker 00:
What were the rights that it was trying to protect?

[00:33:49] Speaker 00:
And with respect to the public performance provision, that is the copyright holder's right to control the audience, to perform

[00:33:58] Speaker 00:
publicly.

[00:34:00] Speaker 00:
So it's not, if I perform a song in the privacy of my own home to my children, a performance, yes, but not a public performance.

[00:34:09] Speaker 00:
If I do the same thing to a stadium full of people, it is a public performance in violation or infringement of the copyright holder's right.

[00:34:18] Speaker 00:
The reason is that the audience changed.

[00:34:21] Speaker 00:
And Congress was concerned about protecting copyright holders

[00:34:25] Speaker 00:
access to the American market, the right to control where their works were shown in the United States.

[00:34:30] Speaker 00:
Here the district court found that the copyrighted material was shown to the public in the United States.

[00:34:37] Speaker 00:
That's a domestic infringement, a domestic application of the act, even if there was additional conduct that occurred abroad.

[00:34:45] Speaker 00:
And we know that from Morrison and RJR Nabisco.

[00:34:48] Speaker 00:
It is not the case that every single

[00:34:52] Speaker 00:
act has to occur in the United States.

[00:34:54] Speaker 00:
The question is the focus of the statute and this provision is clearly focused on the public.

[00:35:01] Speaker 00:
And, of course, TVP here is a sophisticated actor.

[00:35:09] Speaker 00:
It made a business decision to give its exclusive rights to SEI and then lifted its geo-blocking technology, as a district court found, to allow the streaming of the copyrighted programs into the United States.

[00:35:21] Speaker 00:
When it did so, it performed those works publicly to an American audience in the United States.

[00:35:28] Speaker 00:
And a contrary holding that TVP did not infringe, of course, as mentioned, would be not only a roadmap for criminal enterprises and large-scale pirates to locate servers abroad and reach an American audience with no fix.

[00:35:45] Speaker 06:
Mr. George said the government has lots of weapons to go after pirates.

[00:35:49] Speaker 06:
They're behaving unlawfully, violating criminal laws, right?

[00:35:53] Speaker 00:
Well, of course, other countries' laws are no substitute for US law and our ability to prosecute criminal enterprises in the United States when they violate the rights of US copyright holders.

[00:36:08] Speaker 06:
So you argued in the brief, you spent some time arguing that the statute is a strict liability statute.

[00:36:16] Speaker 06:
Correct.

[00:36:17] Speaker 06:
But given the district court's findings, do we even have to consider that question?

[00:36:21] Speaker 00:
No, because with respect to it being strict liability, the reason we argued that is to clarify that there's no intentionality.

[00:36:30] Speaker 06:
But given the district court findings, we don't have to get there, do we?

[00:36:35] Speaker 00:
Not with respect to the volitional conduct aspect, no.

[00:36:37] Speaker 06:
And by the way, speaking of that, if that's true, what happens to something like YouTube if it's strict liability?

[00:36:45] Speaker 06:
Is YouTube liable for?

[00:36:46] Speaker 00:
YouTube.

[00:36:49] Speaker 00:
If Your Honor's asking whether YouTube itself is liable, there's a safe harbor for internet service providers under Section 512 of the statute.

[00:37:03] Speaker 06:
Okay, but except for that, it would be liable, right?

[00:37:06] Speaker 00:
There may well be liability there, which reinforces that streaming over the internet, Congress anticipated that companies that facilitate streaming over the internet of copyrighted works would be liable under Section 106, which was one reason to add the provision for internet service providers.

[00:37:31] Speaker 06:
Okay, thank you.

[00:37:32] Speaker 06:
Did Mr. Deutsch have any time left?

[00:37:35] Speaker 06:
Okay, you can take two minutes, if you would like it.

[00:37:40] Speaker 03:
I appreciate the government's concession that there are multiple performances involving here, but what is not correct is their attempt to leap over that significant problem with this case and go to the question of whether it was public.

[00:37:51] Speaker 03:
Whether it was what?

[00:37:52] Speaker 03:
Public.

[00:37:53] Speaker 03:
There are two separate questions here in our position.

[00:37:56] Speaker 03:
which we think is strongly supported by ARIO, is that the performance by TVP took place in Poland.

[00:38:03] Speaker 03:
If you look at pages 2506 and 07 of ARIO, the Court says that a case, cites this House representative language that I, report that I cited to you,

[00:38:16] Speaker 03:
says, the clause thus makes clear that an entity that acts like a CATV system itself performs, even when doing so, it simply enhances... Yeah, I know, but what about the government's argument about Morrison and RJR?

[00:38:30] Speaker 03:
They say that... We know what Congress's focus is, that the government is making... Excuse me, I asked you about the government's argument that...

[00:38:37] Speaker 06:
Even if you're right that performance occurred there under Morrison and RJR, we still have to focus on the domestic performance.

[00:38:46] Speaker 06:
It doesn't make any difference that there might have been action outside the country.

[00:38:50] Speaker 03:
In Morrison and RJR, there was no indication as to what Congress was thinking about in purpose of specific conflict.

[00:38:57] Speaker 03:
In ARIO, the Supreme Court said at great length what Congress did when it amended these provisions.

[00:39:04] Speaker 03:
It was trying to bring cable television networks in within the copyrights.

[00:39:08] Speaker 06:
If we don't agree, if we don't interpret ARIO quite so narrowly, what's your argument then?

[00:39:15] Speaker 03:
Our argument is that still that the statute and the legislative history says that my client performed in Poland and that if my client transmitted, it also transmitted in Poland.

[00:39:27] Speaker 03:
And those acts are extraterritorial and under more than 100 years of doctrine, they're not within the U.S.

[00:39:32] Speaker 03:
copyright law.

[00:39:34] Speaker 03:
Appreciate it.

[00:39:35] Speaker 03:
Thank you.

[00:39:36] Speaker 06:
Thank you all.

[00:39:36] Speaker 06:
Case is submitted.