BBC successfully defends Californian copyright claim

In November 2017 Carsey-Werner sued the BBC for infringing its copyright in The Cosby Show by broadcasting a documentary entitled "Bill Cosby – Fall of an American Icon" in the preceding June. The claim centred on the uploading of the show to the BBC iPlayer streaming service.

While the BBC had all required permissions to use material from The Cosby Show in the UK, it did not take a license from Carsey-Werner for broadcast to the US, specifically California. That should not have been an issue, as the documentary was not broadcast on the BBC World Service, only domestically, and the BBC iPlayer is restricted to use from the UK.

Carsey-Werner's argument had been that with the use of virtual private networks ("VPNs") or proxy servers, users in California could access the iPlayer and watch the documentary. They further argued that it was a predicable consequence of the BBC uploading the documentary to the iPlayer that users in California would access it.

It is true, of course, that by using a VPN or proxy server a user can mask his or her location and access content restricted to different geographic locations. To use such a service to access the iPlayer would be a breach of the BBC's terms of service, and the BBC has gone to not inconsiderable lengths to prevent access from outside of the UK.

In dismissing the claim, the US District Court held that the lack of sufficient ties to California meant that the BBC were not subject to the jurisdiction of the Court. It also held that the program was not intended for viewers in California.

While it is a judgment of a lower court, it is important in that it concisely summarises the US position on copyright infringement in the digital streaming age: if a user breaches terms of service and hides his or her location in order to access content, the host of that content will not be held liable for any copyright issues arising in the jurisdiction in which illegal and unintended access occurred.

This seems logical, as the contrary position would stifle the display of copyrightable material on the internet for fear of infringing the rights of "someone, somewhere". Carsey-Werner have not yet divulged whether or not they intend to appeal.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.