Bill Cosby lawsuit against BBC dismissed

British broadcaster the BBC has succeeded in its motion to dismiss a copyright infringement claim against its use of footage of Bill Cosby.

The US District Court for the Central District of California dismissed the case for lack of personal jurisdiction on Monday, February 26.

Carsey-Werner, the producer of “The Cosby Show”, filed the original claim on November 3, 2017 at the same court. Carsey-Werner no longer makes TV shows, although it does license previously produced ones.

The BBC broadcast a 2017 documentary, produced by Sugar Films, called “Bill Cosby—Fall of an American Icon”. The plaintiff alleged that the BBC and Sugar Films infringed its copyright by using footage of “The Cosby Show” without permission. The documentary centred around Cosby’s fall from grace following alleged sexual assault.

After the documentary was first aired in June 2017, the programme was available for viewing for 30 days on the BBC’s iPlayer streaming website. During that time period, the programme could be viewed within the US using virtual private networks (VPNs) or proxy services.

Carsey-Werner alleged that the BBC was aware that people outside of the UK used VPNs. It claimed that due to the “California-centric nature” of the programme, it was a “predictable consequence of the BBC’s decision to distribute via the iPlayer that numerous individuals located in California, and an even larger number of people located elsewhere in the US, would access that website to view the programme”.

The plaintiff allegedly sent the BBC an electronic notice the day the programme was first broadcast claiming copyright infringement, with Sugar Films receiving one the following day.

Sugar Films argued that it didn’t commit any intentional or wrongful act aimed at California. It said that it licensed the programme to the BBC to be distributed solely within the UK. Sugar Films said that any distribution via YouTube or other similar websites was unauthorised.

The BBC also said that people within the US would only be able to access the content via VPNs or proxy services, and that the documentary was not directed towards a Californian audience. The BBC even said that between 2015 and the programme’s 2017 release, it had taken additional steps to prevent unauthorised access to the iPlayer website.

Furthermore, according to the BBC, the use of the iPlayer service outside of the UK violates its terms and conditions of service.

Carsey-Werner stated that the defendants took part in wilful copyright infringement by using footage of “The Cosby Show” and travelling to California to conduct interviews with the knowledge that Carsey-Werner is based in the US state. It also said that it suffered harm in California because its copyright-protected material was taken without consent or payment.

The BBC and Sugar Films argued that wilful copyright infringement and knowledge of the copyright owner’s residence are not sufficient to demonstrate “express aiming” in California. It was also argued that Carsey-Werner did not prove that any intentional act caused harm in California.

The court said even if the defendants committed wilful copyright infringement, the “conduct still lacks sufficient ties to California to subject them to personal jurisdiction in this court”.

It also decided that the programme was not intended for viewers in California, with the BBC even taking measures to prevent people outside of the UK from watching the documentary.

“Plaintiff’s speculations about US viewers of the programme outside of California are insufficient to establish jurisdiction,” the court said.

“More importantly, any individuals in the United States who viewed the programme using the iPlayer service did so without defendants’ authorisation and despite defendants’ preventative efforts. Plaintiff fails to establish that defendants purposefully directed their activities toward the US.”

Consequently, the court granted without prejudice the defendant’s motion to dismiss the plaintiff’s complaint for lack of personal jurisdiction.