Polish tiff translates into $3 million in penalties


Do widzenia i powodznia!* Telewizja Polska, S.A. (TVP), may be saying to $3.06 million in its bank accounts. That’s because U.S. District Court Judge Tanya S. Chutkan in Washington, D.C., has found, under American law, that the Polish national television network infringed on the copyrights of Spanski Enterprises, Inc. (SEI), a Canadian content-distributor of Polish television programming.

Chutkan ruled that TVP got itself in quite a ogórek kiszony** over the rights to show dozens of episodes broadcast on an international Polish-language broadcast channel, TVPolonia.com, which touts itself as airing “Polish news, current affairs and information programs, sitcoms, mini series, soap operas, movies, programs for children, entertainment programs and much, much more.”

Co oni walczą o?Słuchaj.***

*Goodbye and good luck! **dill pickle ***What were they fighting about? Listen up.

Prior agreements

TVP, the court found, tried to take a “sneaky” route with the disputed intellectual property by making 51 SEI-copyrighted episodes available in the United States. This occurred after the two companies had entered into a valid licensing agreement on Dec. 14, 1994. That pact gave SEI exclusive rights to distribute, broadcast, and display the content on the internet in North and South America.

TVP also didn’t help its case, because, in 2009, it reached a settlement with SEI in the Southern District of New York. The company agreed that SEI also had the exclusive right to distribute, broadcast, perform, and display TVP content on mobile phones (this shows how much things have changed over time!). Then, three years later, SEI obtained copyrights in the U.S. for the 51 episodes now at issue in this case.

TVP has operated and owned 12 national and 16 regional Polish language television channels . It primarily distributed its TVP Polonia content through its www.tvp.pl website (“TVP website”) in Poland. TVP owns the copyrights in these works. But it also has licensed some of these materials to other distributors, most notably SEI. Here’s where things got more wrapped up than a zrazy zawijane*.

SEI claimed that it had preregistered the 51 episodes before they knowing the same episodes were available in the United States on the TVP website. It took SEI a month between February and March 2012 for the copyright office to register the works and provide SEI with the certificates. The two companies had also discussed geoblocking, a method to prevent user access to a network based on geographic location, in as early as 2000. TVP uses an online-video geoblocking system that prevents users from gaining access to parts of its website based on their location.

The legal making of kiszka ziemniaczana**

So how did TVP website users suddenly gain access to the disputed 51 episodes without TVP involvement? The court determined there was either a system glitch or TVP was actively involved in changing video formats to intentionally allow the programming access in America. The court sided with SEI, concluding that TVP employees acted with volition to willfully infringe SEI rights on the disputed broadcasts by removing territorial restrictions in the network geoblocking system. SEI’s case benefited from witness testimony from the company’s president, attorney, and website developer and monitor. They all swore under oath that they could access the contested episodes from the TVP website in both Canada and the United States during the disputed time.

Judge Chutkan, on Valentine’s Day, shot her own judicial arrow at TVP, doubling the $30,000 maximum award for each infringement that courts are allowed to impose under the Copyright Act. This was a penalty for volitional acts that she found indicated that TVP had not gotten the message about abiding by U.S. copyright law. Of course she could have imposed damages for up to $150,000 per work. TVP has still said it finds the court award to SEI excessive, arguing for lesser penalties of $1,800 per work for a total of $91,800. SEI, in its supplementary briefing, originally sought$7.5 million in statutory damages. So perhaps TVP should be glad the judge effectively served it up kapusta zasmażan*** rather than buying SEI’s arguments and making its finances even more into gulasz****?

* Beef rolls stuffed with bacon, gherkin and onion **Roasted sausage  ***Sauerkraut pan-fried with fried onions, cooked pork, whole pepper, and rich spices ****Stew