Copyright

Spanski v. Telewizja Polska: A Foreign Broadcaster's Stream Lands Inside U.S. Copyright

The D.C. Circuit held that a foreign broadcaster who directs infringing video-on-demand performances to viewers in the United States commits a domestic violation of the Copyright Act.

September 15, 2025
A laptop streaming video content on a desk at night
Disabled geoblocking let Polish broadcast episodes play on U.S. screens, completing the public performance on American soil. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Spanski Enterprises, Inc. v. Telewizja Polska, S.A., 883 F.3d 904 (D.C. Cir. 2018), No. 17-7051, decided March 2, 2018, answered a question the federal appellate courts had never squarely confronted: can a foreign broadcaster be held liable under the U.S. Copyright Act when it streams infringing content from servers abroad to viewers who watch in the United States? Writing for the D.C. Circuit, Judge David Tatel held that it can. Because the public performance was completed on American screens, applying the Copyright Act was a permissible domestic application of the statute, not an impermissible extraterritorial reach — and the court affirmed a damages award of more than three million dollars.

At a glance

  • Case: Spanski Enterprises, Inc. v. Telewizja Polska, S.A., 883 F.3d 904 (D.C. Cir. 2018), No. 17-7051
  • Decided: March 2, 2018; opinion by Judge Tatel
  • Issue: Whether the Copyright Act reaches a foreign broadcaster whose video-on-demand stream originates abroad but is performed on screens in the United States
  • Holding: Holding a foreign actor liable for an infringing public performance completed in the United States is a permissible domestic application of the Copyright Act, not an extraterritorial one
  • Disposition: Affirmed, including a willfulness finding and $3,060,000 in statutory damages

A licensing deal, a disabled geoblock

Telewizja Polska (TV Polska) is Poland’s national public broadcaster and the producer of Polish-language television programming, including the international channel TVP Polonia. Spanski Enterprises, a Canadian company, held the exclusive license to publicly perform and distribute that programming throughout North and South America — the Western Hemisphere rights. To honor that exclusivity, TV Polska operated its online video-on-demand catalog with geoblocking technology designed to prevent users in the Western Hemisphere from streaming content licensed to Spanski.

The system failed — or, more precisely, was defeated. In late 2011, Spanski discovered that fifty-one episodes of programming in which it held exclusive rights could be streamed by viewers in the United States, the geoblocking having been removed. Spanski sued in the District of Columbia. The district court found that TV Polska had infringed Spanski’s exclusive public-performance right, that the infringement was willful, and awarded $60,000 per episode for fifty-one episodes, a total of $3,060,000. TV Polska appealed, contending principally that holding a Polish company liable for conduct emanating from servers in Poland was an impermissible extraterritorial application of U.S. copyright law.

The presumption against extraterritoriality and the RJR Nabisco test

The Copyright Act, like most federal statutes, carries a presumption against extraterritorial application. The Supreme Court’s decision in RJR Nabisco, Inc. v. European Community (2016) supplies the governing two-step analysis. First, a court asks whether the statute gives a clear, affirmative indication that it applies extraterritorially; if not, the presumption holds. Second — and this is the step that decided Spanski — the court asks whether the case nonetheless involves a permissible domestic application of the statute by identifying the statute’s “focus” and determining whether the conduct relevant to that focus occurred in the United States.

The D.C. Circuit accepted, consistent with longstanding circuit authority, that the Copyright Act has no extraterritorial reach. The decisive question was therefore the second one: where did the conduct relevant to the Act’s focus take place? The relevant exclusive right was the right of public performance under 17 U.S.C. § 106(4), and a performance, the court reasoned, occurs where the work is shown to the public. The fifty-one episodes were “performed publicly on computer screens in the United States.” That the transmitting servers sat in Poland did not change the location of the performance any more than the location of a broadcast tower changes where a television program is watched. The conduct relevant to the statute’s focus — the completed public performance — occurred domestically, making the application of the Act a permissible domestic one.

Volitional conduct: who performed?

TV Polska’s fallback argument was that even if the performances occurred in the United States, it did not perform them — the U.S. viewers did, by clicking play. The Copyright Act, the broadcaster urged, should reach only the proximate human actor, and that actor sat in America beyond TV Polska’s control.

The court rejected the attempt to offload responsibility onto end users. The volitional-conduct requirement, which distinguishes a direct infringer from a passive conduit, was satisfied by TV Polska’s own deliberate acts: it maintained the video-on-demand system, it controlled the content available on that system, and it removed the geoblocking that would have prevented the U.S. performances. By making the episodes available on demand and directing them to whoever requested them, TV Polska itself “show[ed]” the works “to the public” within the meaning of the Act. The statute, the court emphasized, does not require that a third party complete the performance for the supplier to be a direct infringer; a video-on-demand operator that transmits a work to a requesting viewer performs it.

Willfulness and the damages award

The court also affirmed the finding of willful infringement, which supported the enhanced per-work statutory damages. The record showed that TV Polska had affirmatively disabled the geoblocking for the fifty-one episodes and then took purposeful steps to conceal what it had done. That combination — deliberate removal of the protective technology plus after-the-fact concealment — comfortably established willfulness, and the $60,000-per-episode award, well within the statutory range for willful infringement, was not an abuse of discretion. The total of $3,060,000 stood.

Open questions

  • How “directed” must a foreign transmission be? Spanski involved an on-demand system that delivered specific episodes to U.S. requesters; the analysis may differ for passive availability or incidental spillover across borders.
  • Does the same logic extend to other exclusive rights — distribution or reproduction — whose “focus” may not be as cleanly located at the point of receipt as a public performance is?
  • How will courts treat defendants who lack any U.S. presence or assets, where the liability theory is sound but enforcement of a judgment is doubtful?

Implications

  • Receipt location can anchor liability. A foreign actor cannot escape the Copyright Act simply by placing its servers abroad if the infringing performance is completed on U.S. screens.
  • Geoblocking is now a legal, not just technical, safeguard. Disabling or failing to maintain territorial restrictions can expose a foreign rights-holder to direct infringement liability in the United States.
  • Volitional conduct reaches system operators. Video-on-demand providers that choose what to make available and to whom are direct performers, not neutral conduits shielded by the user’s click.
  • The RJR Nabisco focus test is the battleground. Cross-border copyright disputes increasingly turn on identifying the statutory “focus” and locating the relevant conduct, rather than on the residence of the defendant.

Frequently asked questions

Did Spanski make U.S. copyright law apply extraterritorially? No. The D.C. Circuit was careful to hold that the Copyright Act has no extraterritorial reach. It found instead that this was a domestic application, because the public performance — the conduct relevant to the statute’s focus — was completed on screens in the United States, even though the transmitting servers were in Poland.

Why was Telewizja Polska the infringer rather than the U.S. viewers? The court held that TV Polska itself performed the works by operating the video-on-demand system, controlling its content, and removing the geoblocking that had prevented U.S. access. The volitional-conduct requirement was satisfied by those deliberate acts; the Copyright Act does not require a third party to complete the performance for the system operator to be a direct infringer.

How were the damages calculated? The district court awarded statutory damages of $60,000 for each of the fifty-one infringed episodes, for a total of $3,060,000, after finding the infringement willful. The D.C. Circuit affirmed both the willfulness finding and the amount as within the court’s discretion.

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