California Court Dismisses Copyright Suit Against BBC Over Cosby Documentary Over Lack Of Jurisdiction

from the hey-hey-hey dept

Fri, Mar 2nd 2018 7:39pm — Timothy Geigner

Late last year, we covered a very odd lawsuit brought against the BBC by the production team for The Cosby Show centering around a BBC documentary covering Bill Cosby's fall from grace in America. Bill Cosby: Fall of an American Icon used several short clips from The Cosby Show, altogether totaling less than four minutes of run-time, and all of them used to provide context to Cosby's once-held status as an American public figure in good standing. Despite the BBC distributing the documentary exclusively overseas, production company Casey-Werner filed its suit in California. Whatever the geography around the legal action, we argued at the time that the BBC's actions were as clear a case of fair use as we'd ever seen.

It seems that legal argument will not be answered in this suit, however, as the court has decided instead to simply dismiss over a lack of jurisdiction. While the BBC's filings had indeed hinted at a forthcoming fair use defense, it also argued that the California court had no business adjudicating this matter to begin with.

BBC argued no actionable infringement could possibly have taken place within a California federal court's jurisdiction because the documentary was only broadcast in the U.K., and while Fall of an American Icon was later available via the BBC’s iPlayer, "geoblocking" prevented it from being seen in the United States absent use of virtual private networks or proxy servers to evade restrictions.

In response, Casey-Werner argued essentially that everyone knows that geo-blocking doesn't work and is easily defeated by the use of a VPN or DNS proxy. And, hey, that's true, except that the failures of geo-blocking technology doesn't give rise to jurisdiction by a California court. Only the BBC's direct action in getting this content stateside would do that and the BBC clearly took steps specifically to avoid that happening. From Judge Percy Anderson's ruling:

That some California individuals may have viewed the Program does not establish that Defendants directed their conduct toward California, particularly because any viewership in California occurred despite Defendants’ intentions and their efforts to prevent it.

Unauthorized viewers outside of the United Kingdom do not provide a basis for personal jurisdiction; rather, Defendants’ relationship with California must arise out of contacts that they themselves created with the state. … Moreover, Plaintiff neither alleges nor offers actual evidence of the extent of viewership of the Program in California.

And so the court never takes on the question of whether this is fair use or not, which it most certainly is. That we never got to that stage says a great deal more about the quality of Casey-Werner's legal team than it does about the protections the BBC sit comfortably behind. The case was dismissed without prejudice, and Casey-Werner could always try to file another lawsuit in the U.K., but it would do well to drop this whole thing and lick its wounds instead.

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Filed Under: copyright, cosby show, documentary, jurisdiction, uk
Companies: bbc, casey-werner

26 Comments

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Anonymous Coward, 2 Mar 2018 @ 9:35pm

It's a wonder that these kind of lawsuits are not more common, since licensing requests are routinely turned down by copyright holders whenever they feel that the material will be used in a negative way (which in the case of Bill Cosby, was a virtual certainty).

Then the documentary film producer has no choice but to use it anyway, claim fair use, and hope no lawsuit results.
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- Anonymous Coward, 3 Mar 2018 @ 6:39am
  
  Re:
  Used in a negative way?
  
  afaik, the BBC documentary contained facts. Does it also contain commentary/opinions?
  
  Bill caused his own problems and this copyright holder was left holding worthless paper I guess.
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Anonymous Coward, 3 Mar 2018 @ 3:43am

Ever get the feeling that Casey-Werner's entire reason for bringing this case wasn't to protect the rapist paedophile Bill Cosby, nor any of their "intellectual" property, but to use fake legal fees as a MASSIVE tax write down to cover their massive debts for 2016-2017?
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Anonymous Coward, 3 Mar 2018 @ 5:19am

Looks like out_of_the_blue was wrong again! Wow. I'm shocked, I tell you. Shocked!
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madasahatter (profile), 3 Mar 2018 @ 5:36am

Surprised
The court got it right. The fact the BBC's efforts could be evaded by someone's personal efforts does not negate the fact the show was blocked for distribution in the US. Geoblocking can be evaded by some relatively easy methods but these methods require the user to actively do something; something many will not do even if they are aware of the methods.
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Anonymous Coward, 3 Mar 2018 @ 6:42am

"In response, Casey-Werner argued essentially that everyone knows that geo-blocking doesn't work and is easily defeated by the use of a VPN or DNS proxy. And, hey, that's true, except that the failures of geo-blocking technology doesn't give rise to jurisdiction by a California court. Only the BBC's direct action in getting this content stateside would do that and the BBC clearly took steps specifically to avoid that happening. From Judge Percy Anderson's ruling:"

Its a wonder that Casey-Warner did not come out with the argument that with the BBC geoblocking access to the documentary that this is prove that the BBC knew that they committed copyright infringement and took steps to geoblock the documentary to hide behind and avoid being charged with copyright infringement. /sarcasm.
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mister nixons head, 3 Mar 2018 @ 7:00am

wonder what canada might retaliate on
hrmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm
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Anonymous Coward, 3 Mar 2018 @ 7:01am

Wait, I thought US jusrisdiction was world-wide.
When did that change? And if it isn't, then why did the BBC bother responding to the lawsuit in the first place?
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- Pixelation, 3 Mar 2018 @ 7:57am
  
  Re: Wait, I thought US jusrisdiction was world-wide.
  Looks like Bill Cosby killed the US overreach. Yay Bill!
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- DB (profile), 3 Mar 2018 @ 7:21pm
  
  Re: Wait, I thought US jusrisdiction was world-wide.
  The BBC responded because they do have a business presence in California and were clearly subject to the jurisdiction of the courts. This show was not part of the business presence, but they still needed to respond.
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  - Anonymous Coward, 3 Mar 2018 @ 7:51pm
    
    Re: Re: Wait, I thought US jusrisdiction was world-wide.
    
    The BBC responded because they do have a business presence in California and were clearly subject to the jurisdiction of the courts.
    
    But the courts were just too stupid to know that?
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    - PaulT (profile), 3 Mar 2018 @ 11:50pm
      
      Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
      Read the following sentence, you might find the context you're missing. The company has business interests in CA, but the show in question was not part of those interests.
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      - Anonymous Coward, 5 Mar 2018 @ 6:23am
        
        Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        "California Court Dismisses Copyright Suit Against BBC Over Cosby Documentary Over Lack Of Jurisdiction"
        
        "The BBC responded because they do have a business presence in California and were clearly subject to the jurisdiction of the courts."
        
        Nah, no conflict there.
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        Anonymous Coward, 5 Mar 2018 @ 8:09pm
        
        Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        I don't know if Paul is too lazy to look up big words like "jurisdiction" or just too stupid.
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        PaulT (profile), 6 Mar 2018 @ 12:10am
        
        Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        You seem to be confused about facts. I can explain if you want, but that would require .you not being an asshole more interested in mocking than explaining.
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        Anonymous Coward, 6 Mar 2018 @ 7:32am
        
        Re: Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        
        I can explain if you want
        
        Oh, please do, but please use a standard dictionary.
        
        you not being an asshole more interested in mocking than explaining.
        
        Talk about assholes.
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        PaulT (profile), 6 Mar 2018 @ 7:48am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        "Oh, please do, but please use a standard dictionary."
        
        I explained a little further here: https://www.techdirt.com/articles/20180227/09361339316/california-court-dismisses-copyright-suit-aga inst-bbc-over-cosby-documentary-over-lack-jurisdiction.shtml#c434
        
        Let me know if those words were too big for you or if you want me to dumb it down a notch. The tldr version: a company having an presence in a particular jurisdiction does not make all of its products under that jurisdiction, if those products are not made or sold there.
        
        "Talk about assholes"
        
        Nah, talking to you is boring enough.
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        PaulT (profile), 6 Mar 2018 @ 12:16am
        
        Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        I didn't say that there was not a conflict. I said that the company having a presence does not mean that every product it produces elsewhere in other departments is under the jurisdiction of that country.
        
        To give a physical world example, having a sales office in CA does not mean that products produced for the UK market have to abide by US electrical standards. That's essentially what's happening here - the company is trying to apply US copyright law to a product made for the UK because they have some unspecified business in the US not related to that product. It doesn't work like that. They need jurisdiction over the actual product, which they don't have because it was neither produced nor distributed there,
        
        Seriously, you people really do need to start comprehending facts rather than rushing to criticise others. You're not only wrong, you just look dumb while pretending you know things.
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        Anonymous Coward, 6 Mar 2018 @ 7:40pm
        
        Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        
        I said that the company having a presence does not mean that every product it produces elsewhere in other departments is under the jurisdiction of that country.
        
        And you know what, the comment you were responding to didn't claim that either, asshole. Nice try.
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        PaulT (profile), 7 Mar 2018 @ 12:07am
        
        Re: Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        So, instead of name calling, try actually explaining what I got wrong.
        
        The person I responded to seemed to think that having an office in a jurisdiction made their products under that jurisdiction. He was wrong. Since you have magically gleaned something else from his words, explain them. You guys are too busy circle jerking around something that I've apparently got wrong to state what it actually is.
        
        I know ACs like you are too busy attacking people to actually state what you think your point is, but perhaps you can be one of the few honest souls willing to make an exception.
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        Anonymous Coward, 7 Mar 2018 @ 6:58am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        
        So, instead of name calling, try actually explaining what I got wrong.
        
        Heh, that's funny (and typically hypocritical for you), considering you were the one who started calling people assholes, asshole.
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        PaulT (profile), 7 Mar 2018 @ 7:07am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        So, I'm not actually wrong, you just wanted to attack me for no reason. A shame. If only you guys were as eager to avoid earning the label of asshole as you are angry at correctly being labelled with that term.
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    - DB (profile), 5 Mar 2018 @ 12:51pm
      
      Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
      That's the way the court system works.
      
      The courts don't 'know' something until it appears in a filing. They can't take it as fact until a reply has been filed that doesn't challenge it.
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      - Anonymous Coward, 5 Mar 2018 @ 8:15pm
        
        Re: Re: Re: Re: Wait, I thought US jusrisdiction was world-wide.
        "That's the way the court system works."
        
        The courts *are* stupid.
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PaulT (profile), 3 Mar 2018 @ 11:51pm

In some ways, I'd love it if this kind of lawsuit did get some traction. These industries would suddenly become great defenders of proper jurisdiction, if a court were to accept a precedent that allowed the most regressive regimes around the world to control them in the way they wish to control the rest of the world based on US law.
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michael, 5 Mar 2018 @ 12:25pm

It's CARSEY-Werner
It's not CASEY-Werner.
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