IP Law Daily, COPYRIGHT—N.D. Cal.: DISH Network wins on all counts against a South Asian internet broadcaster, (Jun 16, 2023)

By Matthew Hersh, J.D.

The ruling sweeps up the broadcaster’s founder and CEO as well.

A company that was founded to bring internet-based South Asian TV and movies to an audience within the United States was liable for infringing the rights of the satellite television company that held the exclusive rights to broadcast that content domestically, the federal court for San Francisco has held. The court, in granting summary judgment on all counts to the U.S.-based network, also found that the South Asian company’s founder and CEO could be held personally liable for the infringement (DISH Network, L.L.C. v. Jadoo TV, Inc., June 13, 2023, Breyer, C.).

The lawsuit was brought by DISH Network (“Dish”), one of two major satellite TV services in the United States (the other is DirectTV). Among other things, Dish is one of the largest providers of international television channels in the United States, offering more than 400 channels in 27 different languages. Dish does this by making deals with foreign networks that give Dish the exclusive right to distribute those networks (and of course, the programs they contain) to Dish’s foreign-language-speaking customers in the US. Among those networks are several that target South Asian communities in the United States.

But Dish was not the only company targeting the South Asian expat community in the United States. A South Asian entrepreneur started Jadoo TV in 2008, according to the complaint, to realize his “vision” of delivering South Asian television content over the Internet to the South Asian immigrant and expatriate community in the United States. Dish sued the South Asian company as well as its CEO, alleging direct and secondary copyright infringement. Both parties moved for summary judgment, leading to this opinion.

Direct infringement. The court granted summary judgment in favor of Dish on all counts. The court began with direct infringement. The South Asian network directly infringed on Dish’s right to publicly perform the works in question to a U.S. audience, the court found, in two different ways.

One manner in which the network infringed, the court found, was by providing its users with the capacity to live stream the networks that Dish had the exclusive right to stream within the United States. In that sense, the court noted, the South Asian network acted essentially like a cable network. To be sure, the court noted, Supreme Court decisions in an earlier time used to insulate such services—that is, services in which signals merely “lurked behind the screen, ready to emerge when the subscriber turned the knob”—from copyright infringement claims. But those decisions were mooted by the Copyright Act of 1976—as a more recent Supreme Court case, Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014), has confirmed. “Today’s ‘turn of the knob,’” the Aereo court found, was now “a click on a website.” That was analogous to the service the network provided here.

The South Asian network also infringed upon Dish’s public performance rights, the court found, by hosting on its own servers—and then streaming them on demand to its customers—the very works over which Dish had exclusive rights. The dispute here was less about law and more about evidence. The network argued that the uploading of the content to its servers was not done by any of its agents. But the evidence pointed overwhelmingly the other way, the court found. The identity of the person who did the uploading was not seriously in dispute: although he had tried to cover his tracks and even to use a fictitious name, Dish came up with overwhelming forensic evidence tying him to the uploading. And that person was plainly an agent of the network, the court reasoned, because it hired him to manage the network operations group, gave him access to the servers on which the content was hosted, and even give him the authority to use the company’s PayPal account.

Secondary liability. The court also found that the company was liable for infringement because it operated a service, known as eMedia, through which users could upload and share content—including the protected works at issue. The network contributed to this infringement, the court found, because it was well aware that the infringement was taking place and yet did nothing to stop it. The network also even induced the infringement, the court found, because it advertised eMedia as a tool for sharing unlicensed content, expressly encouraged users to do, and even helped them to do so on an individual basis when customers sought their help.

The company was also vicariously liable for infringement that took place through the eMedia service, the court found. The company earned a direct financial benefit from the infringement because the unlicensed content drew additional users to the service—thus increasing the company’s ad revenue as a result. And the company certainly had the right to stop or limit the infringement, the court held, simply by removing the eMedia app altogether. Thus, the court held, the company was vicariously as well as contributorily liable for infringement.

Liability of the company’s CEO. In addition to granting summary judgment against the company, the court also found the company’s CEO personally liable as well. Officers of a company can be personally liable for the company’s infringement if they authorize, direct, or participate in the infringement—or where, as one court has put it, they are the “guiding spirit” behind the infringement. Here, the CEO was also the founder and majority shareholder of the company, and he was personally involved in all aspects of the company’s operations. Indeed, the court noted, he admitted that he had “responsibility for” and “the final say in” everything at the company, including customer support and content. That was more than enough, the court reasoned, to find him personally liable.

The Case is No. 20-cv-01891-CRB.

Attorneys: David Michael Korn (Hagan Noll Boyle, LLC) for Dish Network L.L.C. Mark Punzalan (Chan Punzalan LLP) for Jadoo TV, Inc.

Companies: DISH Network, L.L.C.; Jadoo TV, Inc.

Cases: Copyright TechnologyInternet CaliforniaNews GCNNews