In an increasingly connected marketplace, unauthorised performances and displays of copyrighted works easily cross national borders.Although the US Copyright Act generally does not apply to acts outside the US, recent decisions taking a relatively broad view of the public performance right leave no doubt that website owners cannot avoid liability merely by locating their operations abroad.
This article discusses how US courts are addressing the question of copyright liability for extraterritorial conduct and strategies, including geoblocking, aimed at avoiding liability in the US by foreign entities.
Presumption against extraterritoriality
US copyright law naturally focuses on acts occurring in the US. The Copyright Act gives copyright holders the exclusive rights to reproduce, distribute, publicly display or publicly perform a copyrighted work and to prepare derivative works based on a copyrighted work (17 USC section 106). As the copyright laws do not apply extraterritorially, in general, each of these rights only extends to conduct that occurs within the US. But when an act of alleged infringement crosses borders, courts look at "whether [the] case, notwithstanding its extraterritorial elements, involves a permissible domestic application of the Copyright Act".1 To determine whether the Copyright Act prohibits particular crossborder conduct, recent decisions have examined whether the conduct interferes with the exclusivity of the rights the Copyright Act guarantees.
The public performance right
Some rights enumerated in the Copyright Act are easier to apply to foreign conduct than others. For example, a company that makes copies of a copyrighted work without authority in Canada and then sells copies of the work to US consumers would clearly infringe the US copyright owner's exclusive US distribution rights. On the other hand, sales in Canada by the same company would not infringe the copyright holder's US rights.
The public performance right, which allows copyright holders to authorise the public performance of a work, is particularly complicated. Even in purely domestic cases, courts have struggled with what constitutes a public performance. In ABC v Aereo, the US Supreme Court considered a service that captured over-the-air television programmes and transmitted them to particular subscribers over the internet on demand. The court held that "both the broadcaster and the viewer of a television programme 'perform,' because they both show the programme's images and make audible the programme's sounds".2 Moreover, the court held, Aereo's subscribers constitute "the public". Thus, the...
