BBC Points to Geoblocking in Bid to Defeat Lawsuit Over Use of 'Cosby Show' Clips

The Cosby Show Still - H 2015
Courtesy of Everett Collection

The Cosby Show Still - H 2015

When Carsey-Werner Company filed a copyright lawsuit in November against the BBC and Sugar Films Limited over the use of clips from The Cosby Show in a documentary titled Bill Cosby: Fall of an American Icon, many commentators expected the case to turn on fair use. Not necessarily so.

On Thursday, BBC followed Sugar Films by telling a judge the case should be dismissed because no actionable infringement could possibly have taken place within a California federal court's jurisdiction.

"The program was intended for broadcast in the U.K. and in fact was broadcast by BBC only in the U.K. and never in the United States," states BBC's motion. "For a one-month period after its initial broadcast on BBC2, Fall was available to be viewed in the U.K. via the BBC’s iPlayer Internet-based service. Due to 'geoblocking' or other technological means, only those within the U.K. had the ability readily to view the program using iPlayer during that one-month window. Anyone viewing Fall outside of the U.K. did so without the authorization of Defendants Sugar Films and BBC. At no time did Defendants authorize Fall to be made available to viewers in the United States, via regular broadcast, iPlayer or any other means."

The motion, handled by attorney Louis Petrich, nods to a potential fair use defense under U.S. copyright law or a "fair dealing" one under the U.K. Copyright Designs and Patents Act. But without BBC having purposefully directed the documentary to U.S. audiences, Carsey-Werner will need to convince U.S. District Judge Percy Anderson why this case involving a broadcaster based in the U.K. should be fought in California. That will steer the courtroom debate away from the purpose and character of a documentary's use of an alleged sex offender's most famous show. Instead, it appears the dispute is primed to address international copyright claims at a time when some individuals are able to beat geoblocking technology.

"Plaintiff’s allegation amounts to a claim that because of persons whom Americans might consider to be 'hackers' may be able to defeat Defendant’s efforts to block access to its programs outside the U.K., BBC is subjecting itself to personal jurisdiction in California," writes Petrich. "But under this theory, Fall could be viewed via the Internet in every American state, making it clear that any contacts BBC may have with California are indistinguishable from those with any other state."

The brief (read here) adds that this is a "scattershot jurisdictional theory" that has been dismissed by prior judges.