Los Angeles News v. Conus Com. Co. Ltd. Ptnrshp.

• Decision Date: 09 July 1997
• Docket Number: No. CV-95-2852 KMW (SHx).,CV-95-2852 KMW (SHx).
• Citation: 969 F.Supp. 579
• Court: U.S. District Court — Central District of California
• Parties: LOS ANGELES NEWS SERVICE and Robert Albert Tur, Plaintiffs, v. CONUS COMMUNICATIONS COMPANY LIMITED PARTNERSHIP; Westinghouse Electric Corporation; Worldwide Television News Corporation; Court-room Television Network; and Canadian Broadcasting Corporation, Defendants.

969 F.Supp. 579

LOS ANGELES NEWS SERVICE and Robert Albert Tur, Plaintiffs, v. CONUS COMMUNICATIONS COMPANY LIMITED PARTNERSHIP; Westinghouse Electric Corporation; Worldwide Television News Corporation; Court-room Television Network; and Canadian Broadcasting Corporation, Defendants.

No. CV-95-2852 KMW (SHx).

United States District Court, C.D. California.

July 9, 1997.

COPYRIGHT MATERIAL OMITTED

William A. Bergen, Law Offices of William A. Bergen, Auburn, CA, for Los Angeles News Service.

Vincent Cox, Robert S. Gutierrez, Leopold, Petrich & Smith, Los Angeles, CA, for Conus Communications Company Limited Partnership.

Louis P. Petrich, Leopold, Petrich & Smith, Los Angeles, CA, for Canadian Broadcasting Corporation.

Steven M. Perry, Paul J. Watford, Munger, Tolles & Olson, L.L.P., Los Angeles, CA, for Worldwide Television News Corporation.

MEMORANDUM OF DECISION AND ORDER RE: DEFENDANT CANADIAN BROADCASTING CORPORATION'S MOTION TO DISMISS

WARDLAW, District Judge.

This motion presents the question whether the Canadian Broadcasting Corporation ("CBC") can be held liable under the copy-right laws of the United States for broadcasts of allegedly infringing programs originating in Canada which are received and viewed in the United States. By its Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the Alternative, to Sever the Action and Strike Plaintiffs' Jury Demand, CBC challenges this Court's jurisdiction, arguing (1) it did not violate United States copyright laws because it broadcasts solely to Canadian residents from Canada; and (2) it is entitled to immunity under the Foreign Sovereign Immunities Act. Having reviewed all the materials filed by the parties in connection with this motion and considered the oral argument of counsel, as well as all files and records in this case, the Court DENIES Defendant's Motion to Dismiss and GRANTS Defendant's Motion to Sever.¹

I. BACKGROUND

Plaintiff Los Angeles News Service ("LANS") is an accredited news gathering and reporting organization owned and operated by Robert Albert Tur ("Tur"), which produces video and audio tape recordings of newsworthy events and licenses them for profit. First Amended Complaint ("FAC") ¶ 9. On April 29, 1992, civil unrest broke out in the City of Los Angeles following the acquittal of the four Los Angeles police officers charged with using excessive force in the arrest of Rodney King. On that day, LANS was operating video cameras from a helicopter and took videotape motion pictures, including videotape of several persons being beaten. It licensed these videotapes to various news organizations and television stations. FAC ¶ 9. Plaintiffs own the copyrights to the videotape pictures that they call "Beating of Reginald Denny," "Beating of Man in White Panel Truck," "Beating of Man in Brown Hatchback with Rescue," and "[J]apanese Man in Brown Bronco Attacked by Rioters." FAC ¶ 11.

CBC produces and distributes for television broadcast news, entertainment and commentary throughout Canada and portions of the United States. FAC ¶ 8. CBC was created by the Parliament of Canada as a body corporate. Supplemental Declaration of Peter E. Robinson ("Robinson Supp.Decl.") ¶ 2. CBC has corporate offices in Los Angles County, California, with its principal business office located in Canada. CBC does not intentionally broadcast its signal into the United States. Given the common border shared by Canada and the United States, however, CBC's transmissions invariably "spill" CBC's signal into areas of the United States located in close proximity to the border. Declaration of Peter E. Robinson ("Robinson Decl.") ¶¶ 6-7. In 1992-1993, for example, an average of 7,814 households in the United States received CBC's broadcast signal and actually watched CBC. Declaration of Nancy Gallagher ("Gallagher Decl.") ¶ 3.

CBC concedes that, beginning on April 30, 1 1992, CBC broadcast news reports relating to the civil unrest in Los Angeles, including footage of the beating of Reginald Denny and, on one occasion, footage of the beating of a man in a white panel truck. Declaration of Anthony Burman ("Burman Decl.") ¶ 2. However, CBC contends that other news organizations were present and obtained aerial footage of the events occurring on April 29, 1992, and does not concede that Plaintiffs were the copyright owners of the footage used by CBC. Robinson Decl. ¶ 9.

II. STANDARD GOVERNING MOTION

A motion to dismiss for lack of subject matter jurisdiction may be brought pursuant to Federal Rule of Civil Procedure 12(b)(1). The party seeking to invoke the jurisdiction of the court has the burden of establishing that such jurisdiction exists, Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). When a jurisdictional question is raised, the court is not confined to examining the allegations of the complaint, but may consider "affidavits or any other evidence properly before the court." Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997) (citations and quotations omitted). "[T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (quoting Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733 (9th Cir.1979)).

The standard applicable to a 12(b)(6) motion does not apply to the resolution of jurisdictional questions when "issues of jurisdiction and substance are intertwined." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). Normally, the question of jurisdiction and the merits of an action are considered intertwined where the "same statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc., 711 F.2d 138, 139 (9th Cir.1983). In such cases, the Rule 56 summary judgment standard applies, and the moving party must establish that there are no material facts in dispute and that he or she is entitled to prevail as a matter of law. Augustine, 704 F.2d at 1077.

III. DISCUSSION

A. Plaintiff Has Adequately Alleged Infringement of United States Copyright Laws.

The issue of copyright law presented here is the converse of that before the Ninth Circuit in Allarcom Pay Television Ltd. v. General Instr. Corp., 69 F.3d 381, 387 (9th Cir.1995). In Allarcom, a Canadian broadcaster sued to block the unauthorized unscrambling of satellite transmissions originating in the United States, but received and viewed in Canada. The court relied on the Ninth Circuit's en banc ruling in Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088 (9th Cir.1994), cert. denied, 513 U.S. 1001, 115 S.Ct. 512, 130 L.Ed.2d 419 (1994). Subafilms held in part "that in order for U.S. copyright law to apply, at least one alleged infringement must be completed entirely within the United States." Allarcom, 69 F.3d at 387. The Ninth Circuit found in Allarcom that "the potential infringement was only completed in Canada once the signal was received and viewed." Id. Thus, the copyright laws of the United States did not apply. This Court followed Allarcom's reasoning in Los Angeles News Service v. Reuters Television International, Ltd., 942 F.Supp. 1265 (C.D.Cal.1996), which LANS correctly asserts supports its theory that the location where the broadcast is received and viewed is determinative of whether United States copyright laws apply. In Reuters, this Court held that defendant was not liable for satellite transmissions from the United States to London because the infringement was not completed until the transmission was received and viewed at the London branch office. Reuters, 942 F.Supp. at 1269.

Here, CBC contends that because it broadcasts its programming from Canada to residents of Canada, this Court lacks jurisdiction. It argues that CBC has not infringed plaintiffs' works in the United States and, hence, United States copyright laws do not apply. CBC's contention that the claims against it are barred by the holding in Subafilms is wrong. While it is true that "wholly extraterritorial acts of infringement are not cognizable under the Copyright Act," Subafilms, 24 F.3d at 1090, CBC's alleged acts of infringement are not wholly extraterritorial. In Subafilms, the Court considered domestic authorization of acts of infringement which were completed outside the United States. Id. at 1088. Here, however, Plaintiffs' claim direct acts of infringement — not merely authorization — by the display of Plaintiffs' copyrighted works on American television sets.

The copyright laws prohibit the unauthorized performance or display of copyrighted audiovisual works. 17 U.S.C. § 106.² The Copyright Act of 1976 made clear that the "display" of a copyrighted work includes the showing of its image by television broadcast. 17 U.S.C. § 101.³ Under the plain language of the Act, the subject footage was "displayed" on television sets within the United States within the meaning of the Copyright Act. To find otherwise would leave a substantial loophole in the copyright laws. Broadcasters could deliberately transmit potentially infringing material from locations across the U.S. borders for display in the United States without regard to the rights of copyright owners set forth in the U.S. Copyright Act.

CBC further asserts two arguments that bear more aptly on the question of damages, not liability. First, CBC contends that any allegedly infringing activity in the United States was unintended and unavoidable.⁴ Even if true, however, this is no defense to an infringement of copyright. Direct infringement does not require intent or any particular state of mind. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.08 (1996) ("[i]n actions for statutory copyright infringement, the innocent intent of the defendant will not constitute a defense to a finding of liability").

Second, CBC argues that the...