United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2017 Decided March 2, 2018

No. 17-7051

SPANSKI ENTERPRISES, INC.,

APPELLEE

v.

TELEWIZJA POLSKA, S.A.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00957)

Andrew L. Deutsch argued the cause for appellant. With 

him on the briefs was Mary E. Gately.

Jonathan Zavin argued the cause and filed the briefs for 

appellee. Walter E. Steimel Jr. entered an appearance.

Megan Barbero, Attorney, U.S. Department of Justice, 

argued the cause for amicus curiae United States of America 

in support of appellee. With her on the brief were Mark R. 

Freeman, Attorney, and Sarang Vijay Damle, General 

Counsel, U.S. Copyright Office.
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Thomas G. Hentoff and Connor S. Sullivan were on the 

brief for amici curiae Disney Enterprises, Inc., et al. in support 

of appellee.

Before: TATEL, GRIFFITH, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: When the owner of a foreign 

website, acting abroad, uploads video content in which another

party holds exclusive United States public performance rights 

under the Copyright Act and then directs the uploaded content

to United States viewers upon their request, does it commit an 

infringing “performance” under the Act? If so, is it protected 

from liability by the principle—unquestioned here—that the 

Act has no extraterritorial application? Answering these 

questions “yes” and “no,” the district court concluded that 

Polish broadcaster Telewizja Polska was, by transmitting fiftyone episodes of certain Polish-language television programs 

into the United States via its online video-on-demand system, 

liable for infringing copyrights held by a company, Spanski 

Enterprises, Inc., that enjoys exclusive North and South 

American performance rights in the episodes. Telewizja Polska 

appeals this determination, as well as the district court’s 

imposition of statutory damages of $60,000 per episode, for a 

total of $3,060,000. For the reasons that follow, we affirm as to 

both liability and damages.

I.

Appellant Telewizja Polska, S.A. (“TV Polska”), Poland’s 

national public television broadcaster, owns, operates, and 

creates content for several Polish-language television channels, 

including one now called TVP Polonia. TV Polska entered into 

a licensing agreement with Canadian corporation Spanski 

Enterprises, Inc. (“Spanski”), appellee here, granting it North 
3

and South American broadcasting rights in TVP Polonia

content. Following a legal dispute over the scope of these

rights, the parties signed a 2009 settlement agreement 

establishing that Spanski has the exclusive right to perform 

TVP Polonia content, including over the internet, in North and 

South America.

In order to protect Spanski’s exclusive rights, TV Polska—

which makes its programming publicly available through a 

video-on-demand feature on its website—employs technology 

that prevents internet users in North and South America from 

accessing TVP Polonia content though its website. Known as 

geoblocking, this technology allows a website owner to 

digitally embed territorial access restrictions into uploaded 

content. When an internet-enabled device attempts to access 

restricted content, the geoblocking system compares the 

device’s unique internet protocol (IP) address to a third-party 

database that reveals which IP addresses are associated with 

which countries. If the device’s IP address is associated with a 

country subject to restricted access, the device cannot access 

the content.

Two groups of TV Polska employees are responsible for 

ensuring that each episode uploaded to the website is 

programmed to include the appropriate territorial restrictions. 

The first group—the audiovisual technicians working in what 

TV Polska calls its “Workflow System”—converts each 

episode into one or more digital video formats in accordance 

with episode-specific instructions they receive from the second 

group, the program editors working in TV Polska’s “Content 

Management System.” For example, such instructions might 

direct a technician working on a particular episode to create one 

format that is pay-per-view and one that is not or, as in this 

case, to create only formats that are geoblocked from specified 

countries. Even if a technician ignores an instruction to create 
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a geoblocked format for a given episode in the Workflow 

System, though, a device with an IP address associated with a 

given country can access the episode only if the instructions 

generated in the Content Management System also specify that 

access from that country is permitted. In other words, an 

episode is geoblocked either if the technicians working in the 

Workflow System create only territorially restricted digital 

formats of that episode or if the program editors assign the 

episode a territorial restriction in the Content Management 

System. During the period relevant here, the default territorial 

access setting assigned to each TVP Polonia episode in the 

Content Management System was “minus America,” meaning 

that the episode would be automatically geoblocked from 

devices with North or South American IP addresses unless a 

program editor affirmatively selected a different instruction 

from a drop-down menu, regardless of what the technicians did 

in the Workflow System.

In late 2011, Spanski’s attorneys discovered that certain 

TVP Polonia content was not properly geoblocked, leaving it

available to North and South American internet users through

TV Polska’s video-on-demand system. This content included

fifty-one individual episodes that Spanski had registered with 

the United States Copyright Office and in which it held valid 

and exclusive United States copyrights. From December 2011 

to March 2012, Spanski’s attorneys and website developer,

between them, viewed each of these fifty-one episodes, at least 

in part, on TV Polska’s website.

Spanski then sued TV Polska in federal district court, 

asserting its exclusive right under the Copyright Act, 17 U.S.C. 

§ 101 et seq., to “perform” the fifty-one episodes “publicly,” 

id. § 106(4). Following a five-day bench trial, the district court 

found that “the 51 episodes copyrighted by [Spanski] were 

available and viewed in the [United States] via [TV Polska’s] 
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website” during the period of infringement, see Spanski 

Enterprises, Inc. v. Telewizja Polska S.A., 222 F. Supp. 3d 95, 

105 (D.D.C. 2016), and that “[t]here [was] no evidence that a 

failure in [TV Polska’s] geoblocking system” caused the 

episodes to become available, id. at 108. Rather, the district 

court found, the episodes became available in the United States 

because “[TV Polska] employees took . . . volitional action[]” 

by removing the episodes’ default “minus America” territorial 

restriction in the Content Management System and creating 

non-geoblocked digital formats of the episodes in the 

Workflow System. Id. at 106.

Based largely on these findings, the district court held TV 

Polska liable under the Copyright Act for infringing Spanski’s 

exclusive United States performance rights in the fifty-one 

episodes. Id. at 111–12. Observing that Spanski’s rights under 

the Act were “not in dispute,” id. at 110, the court ruled that 

even if “the Copyright Act requires volitional conduct by the 

Defendant for direct infringement to have occurred,” id. at 112, 

TV Polska had satisfied that requirement by streaming

copyrighted content to United States viewers through its 

website, id. at 111–12. Finally, although assuming that the 

Copyright Act imposes no liability for infringements that occur 

abroad, the court concluded that the infringement here “was not 

wholly extraterritorial” because the episodes at issue were 

viewed within the United States. Id. at 112 n.3 (internal 

quotation marks omitted).

With liability settled, the district court turned to the issue

of damages. Typically, an infringer’s per-work liability under 

the Copyright Act’s statutory damages provision is capped at 

$30,000, see 17 U.S.C. § 504(c)(1), but the cap increases to 

$150,000 where the “infringement was committed willfully,” 

id. § 504(c)(2). Here, the district court found, contrary to the 

sworn denials of “[t]he person in charge of [TV Polska’s] 
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geoblocking system,” that TV Polska technicians had created 

episode formats that lacked geoblocking, Spanski Enterprises, 

222 F. Supp. 3d at 106, saw “no evidence that a format could 

be created accidentally,” id. at 107, and concluded that TV 

Polska “acted willfully and intentionally to infringe [Spanski’s] 

copyright,” id. at 106. Further bolstering its inference of intent, 

the district court found that TV Polska had tried to cover its 

tracks by abruptly deleting several of the episodes’ nongeoblocked formats and then retrospectively altering certain 

work logs, introduced as evidence, to give the incorrect 

impression that the episodes had appeared exclusively in 

geoblocked formats all along. Id. at 107–08.

Having thus established TV Polska’s eligibility for 

increased statutory damages, the district court ordered it to pay 

Spanski $60,000 per infringed episode, for a total of 

$3,060,000. Spanski Enterprises, Inc. v. Telewizja Polska S.A., 

No. 12-cv-957, 2017 WL 598465, at *1 (D.D.C. Feb. 14, 

2017). This substantial figure was appropriate, the court 

concluded, because TV Polska’s violation was willful and in 

need of deterrence, it had a “history of infringing [Spanski’s] 

copyright,” its deletion of certain records from the relevant 

period made it impossible to estimate Spanski’s actual 

damages, and it had committed “egregious” manipulation of 

the evidence. Id. at *2.

TV Polska appeals the district court’s conclusions as to 

both liability and damages. “We review the district court’s 

findings of fact for clear error, but resolve issues of law de 

novo,” Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1207 

(D.C. Cir. 2004) (en banc) (citations omitted), and we review 

the statutory damages award for abuse of discretion, see, e.g., 

Bryant v. Media Right Productions, Inc., 603 F.3d 135, 143 (2d 

Cir. 2010); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 

772 F.2d 505, 520 (9th Cir. 1985). The United States has filed 
7

an amicus brief in support of Spanski on the issue of liability, 

as has a group of entertainment producers and distributors. 

II.

Liability under the Copyright Act attaches where one party 

infringes another’s valid copyright. See 17 U.S.C. § 504(a); see 

also Feist Publications, Inc. v. Rural Telephone Service Co., 

499 U.S. 340, 361 (1991) (listing elements of liability as one 

party’s “ownership of a valid copyright” and another party’s 

infringing act). TV Polska contests neither the validity nor the

scope of Spanski’s rights under the Copyright Act, arguing

instead that the district court improperly concluded that it had 

infringed those rights. 

Before considering TV Polska’s legal claims, we address 

its single challenge to the district court’s factual findings as to 

its conduct, namely, that the court clearly erred in finding that

its employees “must have volitionally acted to remove 

territorial restrictions from the 51 Episodes.” Appellant’s Br. 

27. The only support it musters for this position, however, is 

evidence that some of the episodes at issue had been uploaded 

in both geoblocked and non-geoblocked formats and that 

several of the non-geoblocked formats were created only after 

the period of infringement. These isolated points are nowhere 

near sufficient to undermine the district court’s considered 

factual findings, which rested on record evidence that the fiftyone episodes had been viewed in the United States and Canada 

via the TV Polska website, Spanski Enterprises, 222 F. Supp. 

3d at 103–05, that this could have occurred only if there was “a 

failure of the geoblocking system[] or a volitional step by a [TV 

Polska] employee to give access,” id. at 103, and that the record 

contained “no evidence that a failure in [TV Polska’s] 

geoblocking system caused the infringement,” id. at 108.
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TV Polska is left, then, with its argument that its conduct 

did not constitute infringement as a matter of law. According 

to TV Polska, maintaining a fully automated video-on-demand 

service cannot constitute a copyright violation because the end 

user, who ultimately selects which content to view, is alone 

liable for any infringement. Alternatively, it argues that 

because its conduct occurred exclusively in Poland, imposing 

Copyright Act liability on the basis of that conduct would 

amount to an impermissible extraterritorial application of the 

Act. We consider these arguments in turn and, like the district 

court, reject both.

A.

In support of its first argument—that the transmission of 

copyrighted content through an online video-on-demand 

system does not constitute infringement—TV Polska insists

that “[p]roof that a defendant’s alleged infringing conduct was 

volitional is a clear requirement of any claim for direct 

infringement,” Appellant’s Br. 24, and that such volitional 

conduct is absent where, as here, a website owner “operates an 

automatic content delivery system that is not itself infringing, 

the user, not [the website owner], selects the content it will 

view or receive and actuates the delivery system, and the user 

request is not processed by [the website owner’s] employees,” 

id. at 25.

This argument cannot be squared with the text of the 

Copyright Act. Among the privileges a copyright holder enjoys 

under the Act is the exclusive right “to perform [its] 

copyrighted work publicly.” 17 U.S.C. § 106(4). To “perform” 

an audiovisual work means “to show its images in any 

sequence or to make the sounds accompanying it audible.” Id.

§ 101. To do so publicly means, as relevant, to “transmit or 

otherwise communicate a performance or display of the work 

. . . to the public, by means of any device or process, whether 
9

the members of the public capable of receiving the 

performance or display receive it in the same place or in 

separate places and at the same time or at different times.” Id.; 

see also id. (“To ‘transmit’ a performance or display is to 

communicate it by any device or process whereby images or 

sounds are received beyond the place from which they are 

sent.”). Nowhere does the Act state that a work so shown is 

performed only if a third-party end user plays no role in the 

showing. Here, because TV Polska “show[ed]” the fifty-one

copyrighted episodes “to the public” through its video-ondemand system—“a[] device or process” that rendered 

“members of the public capable of receiving the performance

. . . in separate places and . . . at different times,” id.—it has

violated Spanski’s undisputed public performance right.

Even if the statute’s text left any room for doubt, the 

Supreme Court’s recent decision in American Broadcasting 

Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014), confirms that TV 

Polska has committed an infringing performance. In that case, 

the Court held that Aereo, Inc., which ran a service that would,

at a user’s request, direct antennae to capture broadcast 

television signals and retransmit them over the internet to the 

user’s computer, id. at 2503, infringed the television 

broadcasters’ public performance rights under the Copyright 

Act, id. at 2511. In so holding, the Court relied on the Act’s 

capacious definition of public performance—to reiterate, the 

“transmi[ssion] . . . to the public” of a work’s “images in any 

sequence,” 17 U.S.C. § 101—which Congress added in 1976 

specifically to reject two prior Supreme Court decisions 

holding that community antenna television systems (which, 

like Aereo, captured signals from broadcasters and transmitted 

them to end users) were insufficiently similar to traditional

broadcasters to publicly “perform” copyrighted material. See 

Aereo, 134 S. Ct. at 2504–06. Under the Act’s post-1976 

definition, the Court held, “both the broadcaster and the viewer 
10

of a television program ‘perform,’ because they both show the 

program’s images and make audible the program’s sounds.” Id.

at 2506. Likewise, the Court further observed, an intermediary 

such as Aereo publicly performs even where its conduct 

consists only of capturing and retransmitting a broadcast “in 

automatic response” to an end user’s request. Id. at 2507.

Aereo thus forecloses TV Polska’s argument that the 

automated nature of its video-on-demand system or the end 

user’s role in selecting which content to access insulates it from 

Copyright Act liability. Indeed, TV Polska played a more 

active role in performing infringing content than did Aereo. If 

an automated antenna system that, like Aereo, indiscriminately 

retransmits third-party content upon a user’s request commits 

an infringing performance where that content happens to be 

under copyright, then a video-on-demand system, like TV 

Polska’s, that transmits copyrighted episodes purposely 

selected and uploaded by the system operator surely does the 

same. Even the Aereo dissent recognized as much. See id. at 

2513 (Scalia, J., dissenting) (“Video-on-demand services . . . 

respond automatically to user input, but they differ in one 

crucial respect: They choose the content . . . . That selection and 

arrangement by the service provider constitutes a volitional act 

directed to specific copyrighted works and thus serves as a 

basis for direct liability.”). 

TV Polska offers two reasons for distinguishing Aereo. 

Neither is persuasive. 

First, TV Polska points out that, unlike Aereo, which 

transmitted third-party content, it transmitted only content that 

it had itself created. But this distinction has no bearing on what 

it means “to show” a work’s “images” to “the public,” 17 

U.S.C. § 101, whatever the work’s origin. Moreover, TV 

Polska makes no argument that Spanski’s status as licensee of 
11

the fifty-one episodes, rather than their creator, affects the 

scope of its rights under the Copyright Act. 

Next, TV Polska seems to suggest that Aereo’s 

interpretation of the Copyright Act was a one-time deal, good 

for that case only. In support, it emphasizes that in finding an 

infringing performance, the Court relied on “Aereo’s 

overwhelming likeness to the cable companies” targeted by the 

amendments that introduced the Act’s public performance 

definition. Aereo, 134 S. Ct. at 2507. And, it goes on, the Court

declined to opine on how that definition might apply “[i]n other 

cases involving different kinds of service or technology 

providers.” Id. This argument suffers from several fundamental 

defects. 

To begin with, as every first-year law student learns, a

judicial decision resolves only the case before it, so it is 

unsurprising that the Court declined to hypothesize about how 

its holding would apply to future cases. See Karl N. Llewellyn, 

The Bramble Bush: The Classic Lectures on the Law and Law 

School 39 (Oxford University Press 2008) (1930) (“The court 

can decide only the particular dispute which is before it. . . . 

When it speaks to the question before it, it announces law . . . .” 

(italics omitted)). Such judicial restraint, though, hardly means 

that Aereo’s holding has no applicability outside that case’s 

narrow factual circumstances. As our first-year law student

also learns, judicial opinions establish precedential principles 

that apply to materially similar factual scenarios arising in 

future cases. See id. at 34 (“[T]he decision plus the opinion go 

far to show what this court that speaks will do again upon like 

facts . . . .”). In Aereo, after reviewing the Copyright Act’s

legislative history, the Court concluded that a viewer’s decision 

to access an infringing television program did not relieve a 

broadcaster from liability for “show[ing] the program’s images 

and mak[ing] audible the program’s sounds.” Aereo, 134 S. Ct. 
12

at 2506. TV Polska offers no reason why this principle fails to 

capture its conduct as well. Indeed, as we have just explained, 

if there is an especially salient distinction between TV Polska’s 

conduct and Aereo’s, it is that TV Polska, by selecting as well 

as transmitting copyrighted content, played an even more 

active role in broadcasting infringing performances than did 

Aereo.

Undaunted, TV Polska argues that literal application of the 

Copyright Act’s public performance definition would result in 

virtually limitless liability. Of course, any website that allows 

third parties to post content—say, YouTube, Facebook, or even 

the comments section in the Washington Post online—has the 

capacity to publicly show infringing content. And any internet 

service provider—say, Comcast or AT&T—that merely allows

users to connect to the internet likewise has a hand in 

communicating infringing performances to the public. Does 

Twitter unwittingly commit infringement, for example, 

whenever its users impermissibly post copyrighted images? Or

does T-Mobile commit infringement when it allows its 

customers to access such posts?

Congress has already provided statutory protection against 

some of these potential ramifications. See 17 U.S.C. § 512 

(providing statutory defenses for service providers charged 

with infringement). Several courts have likewise responded to 

the risk of sweeping liability by requiring copyright plaintiffs 

to establish “some element of volition” on the part of the 

alleged infringer or some close causal nexus between the 

alleged infringer’s conduct and the violation of the plaintiff’s 

rights. Religious Technology Center v. Netcom On-Line 

Communication Services, Inc., 907 F. Supp. 1361, 1370 (N.D. 

Cal. 1995). Where adopted, this “volitional-conduct 

requirement” protects website owners and internet service 

providers that merely “serv[e] as . . . passive conduit[s] for 
13

copyrighted material.” BWP Media USA, Inc. v. T & S Software 

Associates, Inc., 852 F.3d 436, 439 (5th Cir. 2017); see id. at 

442 (no liability for defendant that “hosts the [online] forum on 

which infringing content was posted” by others); Perfect 10, 

Inc. v. Giganews, Inc., 847 F.3d 657, 668 (9th Cir. 2017) (no 

liability for defendant whose “actions were akin to ‘passively 

storing material at the direction of users in order to make that 

material available to other users upon request’” (quoting 

CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th 

Cir. 2004))); Parker v. Google, Inc., 242 F. App’x 833, 836–

37 (3d Cir. 2007) (no liability for defendant that maintained an 

online bulletin board on which third parties posted infringing 

content).

Our court has yet to decide whether to read such a 

volitional conduct or proximate cause requirement into the 

Copyright Act, and we need not do so today. TV Polska’s 

conduct—“us[ing] its own equipment” to “allow[] [users] to 

watch television programs, many of which are copyrighted,” 

by transmitting content upon a user’s request, Aereo, 134 S. Ct. 

at 2506—constitutes infringement under Aereo’s binding 

authority, whatever the scope of any such requirement might 

otherwise be.

Finally, TV Polska cites two Supreme Court cases, Sony 

Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 

(1984), and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 

Ltd., 545 U.S. 913 (2005), which, in its view, insulate it from 

liability. But neither opinion has any clear relevance to this 

case. In Sony and Grokster, copyright holders sought to impose 

liability on the manufacturers or distributors of technology that 

enabled third parties to commit infringement. Sony involved

the Betamax video tape recorder—for readers under thirty, a 

device that allowed users to record a television program for 

future viewing; Grokster involved certain peer-to-peer file-
14

sharing software. In both cases, the Court concluded that 

distributing a product that enables infringement “does not 

constitute contributory infringement if the product is . . . 

capable of substantial noninfringing uses,” Sony, 464 U.S. at 

442, unless infringement is the product’s “principal object,” 

Grokster, 545 U.S. at 926. According to TV Polska, its videoon-demand system “is broadly capable of uses that do not 

infringe any rights of [Spanski],” Appellant’s Br. 29, and was 

not created principally to induce infringement. This argument 

is beside the point. The district court did not hold TV Polska 

liable for infringement merely because it maintained a videoon-demand system. Rather, the court concluded—and we 

agree—that TV Polska’s own use of this system to 

communicate infringing performances amounted to actionable 

conduct under the Copyright Act.

B.

This brings us to TV Polska’s argument that even if it did 

infringe Spanski’s copyright, holding it liable for that 

infringement would constitute an impermissible extraterritorial 

application of the Act because it did nothing in the United 

States. Whether an infringing performance that originates 

abroad but that ultimately reaches viewers in the United States 

can be actionable under the Copyright Act is a question of first 

impression in the federal appellate courts.

The Supreme Court recently described “a two-step 

framework for analyzing” whether a statutory violation that, at 

least in part, takes place abroad gives rise to liability. RJR

Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2101 

(2016). A court first asks “whether the statute gives a clear, 

affirmative indication that it applies extraterritorially.” Id.

Here, the parties agree that the Copyright Act has no 

extraterritorial application, and we assume they are correct. See 

Tire Engineering & Distribution, LLC v. Shandong Linglong 
15

Rubber Co., 682 F.3d 292, 306 (4th Cir. 2012) (per curiam)

(“As a general matter, the Copyright Act is considered to have 

no extraterritorial reach.”); Subafilms, Ltd. v. MGM-Pathe 

Communications Co., 24 F.3d 1088, 1094 (9th Cir. 1994) (en 

banc) (“[T]he copyright laws do not apply extraterritorially 

. . . .”). We therefore move to the second step, which requires 

us to determine whether this case, notwithstanding its

extraterritorial elements, “involves a permissible domestic 

application” of the Copyright Act. RJR Nabisco, 136 S. Ct. at 

2101. “[W]e do this,” the Court has explained, “by looking to 

the statute’s ‘focus,’” id., described as “the objects of the 

statute’s solicitude,” or what it is “that the statute seeks to 

‘regulate’” or protect, Morrison v. National Australia Bank 

Ltd., 561 U.S. 247, 267 (2010). “If the conduct relevant to the 

statute’s focus occurred in the United States, then the case 

involves a permissible domestic application even if other 

conduct occurred abroad; but if the conduct relevant to the 

focus occurred in a foreign country, then the case involves an 

impermissible extraterritorial application regardless of any 

other conduct that occurred in U.S. territory.” RJR Nabisco, 

136 S. Ct. at 2101.

The Supreme Court recently modeled the “focus” inquiry 

in Morrison v. National Australia Bank Ltd., 561 U.S. 247 

(2010). There, the Court considered whether an Australian 

bank could be held liable for securities fraud under the 

Securities Exchange Act of 1934 for the overvaluation of its 

shares—traded on no American exchange—stemming from

misrepresentations made by a Florida-based mortgageservicing company it had acquired. Id. at 251–53. After 

determining that the relevant statutory provision had no

extraterritorial application, id. at 265, the Court asked whether 

the fact that the alleged fraud derived from misrepresentations 

made in the United States meant that the shareholders who had 

brought the suit sought to apply the statute domestically, id. at 
16

266–70. Observing that the statute punished “only deceptive 

conduct ‘in connection with the purchase or sale of any security 

registered on a national securities exchange or any security not 

so registered,’” id. at 266 (quoting 15 U.S.C. § 78j(b)), the 

Court concluded that “[t]hose purchase-and-sale transactions 

are the objects of the statute’s solicitude,” id. at 267. 

Accordingly, “the focus of the Exchange Act is not upon the 

place where the deception originated, but upon purchases and 

sales of securities in the United States.” Id. at 266.

Guided by the Supreme Court’s methodology, we identify 

the “conduct relevant to the [Copyright Act’s] focus,” RJR 

Nabisco, 136 S. Ct. at 2101, by asking precisely what it is that 

the Act regulates. The answer is clear: the Act grants copyright 

holders several “exclusive rights”—among them, the right “to 

perform [a] copyrighted work publicly,” 17 U.S.C. § 106(4)—

and effectuates those rights by prohibiting “infringement,” or 

the “violat[ion]” of those “exclusive rights,” id. § 501. The 

Copyright Act “focuses,” then, on policing infringement or, put 

another way, on protecting the exclusivity of the rights it 

guarantees. Here, although it was in Poland that TV Polska 

uploaded and digitally formatted the fifty-one episodes, the 

infringing performances—and consequent violation of 

Spanski’s copyrights—occurred on the computer screens in the 

United States on which the episodes’ “images” were 

“show[n].” Id. § 101. Accordingly, because “the conduct 

relevant to the statute’s focus occurred in the United States,” 

this case “involves a permissible domestic application” of the 

Copyright Act, “even if other conduct occurred abroad.” RJR 

Nabisco, 136 S. Ct. at 2101.

Characterizing the statute’s focus differently, TV Polska 

points to Aereo’s discussion of the Act’s 1976 amendments as 

establishing that “the ‘focus’ of the Copyright Act’s public 

performance provisions is prohibition of unauthorized 
17

retransmissions by cable TV systems.” Reply Br. 16. TV 

Polska misunderstands the “focus” inquiry: instead of asking 

what components of an otherwise actionable statutory violation 

must occur within the United States to bring it within the Act’s 

domestic sweep, TV Polska rehashes its unsuccessful argument 

as to what sort of conduct violates the Copyright Act in the first 

place. Given our conclusion that TV Polska’s broadcasts would 

have been actionable had they been entirely domestic, the 

relevant question is whether the ultimate performance of those 

broadcasts on computer screens in the United States was 

“relevant to [the Copyright Act’s] focus.” RJR Nabisco, 136 S. 

Ct. at 2101. TV Polska offers no reason to question our 

understanding that it was.

Alternatively, TV Polska argues that even if the Copyright 

Act’s focus includes, as we have concluded, the infringing 

performance itself, Aereo establishes that its performance 

occurred abroad. As TV Polska sees it, Aereo’s observation 

that under the Act “both the broadcaster and the viewer of a 

television program ‘perform’” that program, Aereo, 134 S. Ct. 

at 2506, means that, in the context of an international 

transmission, there are two performances—one by the 

broadcaster at the foreign point of origin and one by the user at 

the domestic point of reception. TV Polska overreads Aereo, 

which asks only whether Aereo performed “when a subscriber 

watche[d] a show using Aereo’s system.” Id. at 2504. Under

TV Polska’s reading, a broadcaster would commit an 

infringing performance merely by transmitting a copyrighted 

work into the void, regardless of whether those transmissions

ever result in the work’s “images” being “show[n]” to even a 

single viewer. 17 U.S.C. § 101. Given that the Act defines 

“perform” (in relevant part) to require such a showing, see id.,

we think Aereo is better read to establish only that a broadcaster 

and a viewer can both be liable for the same performance, i.e., 

the infringing display of copyrighted images on the viewer’s 
18

screen. In this case, the infringing performance occurred in the 

United States.

Congress had good reason to allow domestic copyright 

holders to enforce their rights against foreign broadcasters who 

direct infringing performances into the United States. Given 

the ease of transnational internet transmissions, a statutory 

scheme that affords copyright holders no protection from such 

broadcasters would leave the door open to widespread 

infringement, rendering copyright in works capable of online 

transmission largely nugatory. 

In its amicus brief, the United States offers two examples 

that helpfully illustrate this point. First, it points out that under 

such a scheme, “large-scale criminal copyright pirates could 

avoid United States copyright liability simply by locating their 

servers outside the United States.” United States Br. 14. 

Second, “television stations in San Diego and El Paso could 

eliminate the need to obtain U.S. copyright licenses simply by 

moving their broadcast antennae to Tijuana and Ciudad 

Juarez.” Id. at 14–15. We agree with the United States that 

“Congress could not have intended the public-performance 

right to be susceptible to such ready evasion.” Id. at 15.

TV Polska offers little response to these troubling 

consequences of its position, claiming only that foreign

enforcement authorities can address such cases. But nothing in 

the Copyright Act even hints that Congress intended to rely on 

the uncertain cooperation of foreign governments to ensure that 

copyright holders are able to enjoy their exclusive statutory 

rights while in the United States. Nor do we see any relevance 

to the Supreme Court’s statement in RJR Nabisco, Inc. v. 

European Community, 136 S. Ct. 2090 (2016), that “a potential 

for international controversy . . . militates against recognizing 

foreign-injury claims without clear direction from Congress,” 
19

id. at 2107; see also Reply Br. 18. The violation of a copyright 

holder’s exclusive performance right inside the United States, 

after all, represents a domestic injury. 

TV Polska argues that even if the government’s concerns 

are well taken, they lose their force in situations where, as here,

the foreign infringers “are lawful copyright owners in their 

home countries,” Reply Br. 22, or where, again as here, the 

domestic copyright holder is protected by contract and so need 

not invoke statutory law to protect its interests, id. at 24. TV 

Polska, however, offers no legal grounding for these proposed 

distinctions. Nor do we see any logical connection between the 

scope of a broadcaster and copyright holder’s respective rights 

and the question of whether the direction of an infringing 

performance into the United States from abroad is domestic or 

extraterritorial.

Attempting to turn the table on the United States, TV 

Polska argues that treating its conduct as a domestic violation 

of the Copyright Act would leave any casual internet user 

anywhere in the world open to liability for uploading 

copyrighted content to a foreign website whenever anyone in 

the United States happens to stumble upon it. Indeed, given that 

“intent is not an element of [copyright] infringement,” Costello 

Publishing Co. v. Rotelle, 670 F.2d 1035, 1044 (D.C. Cir. 

1981), TV Polska argues, liability could attach where, even 

though a foreign website owner conscientiously geoblocks the 

copyrighted material it posts to its website, an American user 

manages to circumvent the territorial restrictions and views the 

content domestically. Although we have no occasion to 

prejudge such situations, we note that foreign defendants in 

such cases may well have alternative defenses against liability, 

such as a lack of proximate causation between the foreign 

conduct and the domestic performance or an American court’s 

lack of personal jurisdiction over the foreign infringer. See, 
20

e.g., Rano v. Sipa Press, Inc., 987 F.2d 580, 588 (9th Cir. 1993) 

(rejecting view of personal jurisdiction that would “render . . .

foreign owners of art who sell their products to publications[] 

amenable to personal jurisdiction [on copyright claims] in 

every state in which their art eventually is displayed”). For 

present purposes, we need hold only that a foreign broadcaster 

that, as here, directs infringing performances into the United 

States from abroad commits a domestic violation of the 

Copyright Act. 

Finally, the decisions TV Polska cites for the proposition 

that “acts committed abroad cannot form the basis for a U.S. 

copyright infringement suit,” Appellant’s Br. 33, hold nothing 

of the sort. Instead, they indicate only that infringements that, 

unlike the performances at issue here, occur abroad cannot in 

most cases generate Copyright Act liability. See Subafilms, 24 

F.3d at 1098 (extraterritoriality doctrine barred liability for 

distribution of allegedly infringing videos abroad); Luar Music 

Corp. v. Universal Music Group, Inc., 861 F. Supp. 2d 30, 38–

40 (D.P.R. 2012) (extraterritoriality doctrine barred liability for 

releasing an allegedly infringing sound recording abroad). 

Indeed, Spanski and the United States point to multiple district 

court decisions holding, as do we, that an infringing

performance that originates abroad but terminates in the United 

States constitutes a domestic Copyright Act violation. See, e.g.,

Crunchyroll, Inc. v. Pledge, No. C 11-2334, 2014 WL 

1347492, at *17 (N.D. Cal. Mar. 31, 2014) (defendant who 

copied and uploaded copyrighted television episodes while in 

United Kingdom could be liable where those episodes were 

transmitted to United States viewers); United Feature 

Syndicate, Inc. v. Miller Features Syndicate, Inc., 216 F. Supp. 

2d 198, 225 (S.D.N.Y. 2002) (rejecting Canadian website 

owner’s extraterritoriality defense because infringing material 

posted on the site was viewed in the United States).
21

In passing the Copyright Act, Congress bestowed on 

copyright holders a specific set of rights. Holding foreign 

actors liable for conduct that results in the domestic 

infringement of those rights effectuates the Act’s guarantees

and fully coheres with principles of extraterritoriality as 

articulated by the Supreme Court.

III.

Having concluded that the district court properly held TV 

Polska liable for copyright infringement, we turn to TV 

Polska’s challenges to the $3,060,000 damages award. Recall 

that the district court found TV Polska eligible for statutory 

damages of $60,000 per episode because its infringement was 

“willful,” and that it based the total damages award on its 

finding that TV Polska infringed all fifty-one episodes. Spanski 

Enterprises, 2017 WL 598465, at *2. TV Polska challenges 

both the willfulness finding and the finding as to the number of 

episodes it infringed. Mindful that “an appellant seeking 

reversal of a trial court’s findings of fact in a bench trial faces 

a daunting task,” Overby v. National Ass’n of Letter Carriers, 

595 F.3d 1290, 1293 (D.C. Cir. 2010), prevailing only if no 

reasonable factfinder could have reached the district court’s 

conclusion, id. at 1294, we reject both challenges.

Willfulness

TV Polska attempts to evade clear-error review by arguing 

that a de novo standard ought to apply because the Federal 

Circuit employs such a standard when reviewing a district

court’s willfulness finding in patent infringement cases. See 

Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, 

Inc., 682 F.3d 1003, 1006–07 (Fed. Cir. 2012). TV Polska

overlooks that the Federal Circuit case law limits the 

application of this review standard to an objective component 

of the willfulness inquiry under patent law that the Supreme 
22

Court has recently abrogated. See Halo Electronics, Inc. v. 

Pulse Electronics, Inc., 136 S. Ct. 1923, 1930, 1932–34 (2016).

The district court here made a factual finding as to TV Polska’s 

subjective intent. Like most factual findings, we review this 

one for clear error. See Microsoft Corp., 373 F.3d at 1207 

(reviewing factual findings for clear error); see also, e.g., 

Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 

2001) (“We review . . . findings of willfulness [under the 

Copyright Act] under the same deferential . . . standard that 

applies to factual determinations pertinent to liability.”).

The district court found that TV Polska deliberately 

removed geoblocking from the fifty-one episodes at issue, was 

aware of Spanski’s exclusive right to broadcast those episodes 

in the United States, and took purposeful after-the-fact steps to 

hide its conduct. See Spanski Enterprises, 222 F. Supp. 3d at 

106–08. It requires no great leap from these factual predicates 

to arrive at the conclusion that TV Polska knew that its conduct 

was infringing. Cf. United States v. Bailey, 622 F.3d 1, 5 (D.C. 

Cir. 2010) (clear error standard requires reviewing court to 

“give due weight to inferences drawn from . . . facts by the 

district court”). 

TV Polska points to testimony by a Deputy Director in its 

Technology Department who professed ignorance as to United 

States copyright law. It also argues that neither the licensing 

agreement nor Spanski itself gave it express notice that Spanski 

held copyright in the licensed episodes. But TV Polska pressed 

both points at trial, and the district court found them 

unpersuasive. TV Polska has given us no basis for upsetting the 

district court’s reasonable finding, based on ample evidence of

misconduct, that TV Polska knew it was up to no good. And to 

the extent TV Polska argues that the district court committed 

legal error by supposedly concluding that willfulness requires 

only “intentional conduct that amounts to infringement,” 
23

Appellant’s Br. 41, rather than the specific intent to violate 

protected rights, it fails to account for the district court’s 

express finding that TV Polska “could not have been ignorant 

to the fact it was infringing [Spanski’s] copyright.” Spanski 

Enterprises, 222 F. Supp. 3d at 113 (emphasis added).

Number of Episodes Infringed

TV Polska concedes that thirty-six of the fifty-one 

episodes were viewed in the United States, but contends that 

the district court clearly erred in finding that the remaining 

fifteen were similarly viewed. The district court based its 

finding principally on the testimony of one of Spanski’s 

attorneys, who kept a contemporaneous log of the episodes—

including the fifty-one at issue here—he had viewed on the TV 

Polska website. At trial, the lawyer testified that during the 

infringement period he “streamed each” of the fifty-one 

episodes on his computer in New York “to make sure they were 

available” on the website. Trial Tr. 200 (Feb. 23, 2016), Joint 

Appendix (J.A.) 481. 

Attempting to undermine the force of the lawyer’s 

testimony, TV Polska highlights his statement that he had no 

specific recollection at the time of trial—four years after the 

fact—of having watched all fifty-one episodes, as well as his 

inability to say that he “definitely” checked each episode to 

ensure that it was streaming. Id. at 201, J.A. 482. It further 

observes that the lawyer’s testimony suggests that he entered 

some of the episodes into his log before ensuring that those 

episodes could actually be streamed. To be sure, these points 

of uncertainty might well be powerful at trial. But TV Polska 

made these arguments to the district court, and that court 

concluded that although the witness “may not have had specific 

recollections of viewing each individual episode,” his 

testimony, taken together with other evidence including
24

contemporaneous screenshots from the TV Polska website and 

testimony from one of Spanski’s contractors, “was sufficient to 

show that the [fifty-one] episodes were available for viewing 

and viewed in the [United States].” Spanski Enterprises, 222 F. 

Supp. 3d at 103. Perhaps we would arrive at a different 

conclusion were we considering the lawyer’s testimony in the 

first instance, or perhaps not. The critical point is that the 

district court, which heard the testimony firsthand, arrived at a 

supportable conclusion that we have no basis for upsetting. Cf. 

United States v. Jones, 744 F.3d 1362, 1367 (D.C. Cir. 2014) 

(“We give especially strong deference to [a district court’s] 

credibility determinations . . . .”).

IV.

To sum up, then, we hold that where a foreign broadcaster 

uploads copyrighted content to its website and directs that 

content onto a computer screen in the United States at a user’s 

request, the broadcaster commits an actionable domestic 

violation of the Copyright Act. Consistent with this view of the 

law, the district court, based on its supportable factual findings, 

found TV Polska liable for infringing Spanski’s copyrights in 

the fifty-one episodes and concluded that damages of $60,000 

per episode were appropriate in light of the circumstances. 

Seeing no basis for upsetting these considered judgments, we 

affirm as to both liability and damages.

So ordered.