IPTV site ordered to pay millions in damages to Turkish broadcaster for piracy

An online TV streamer has been ordered by the Federal Court to pay a Turkish broadcaster millions of dollars in damages as part of a copyright dispute over the pirating of thousands of episodes of original TV programs. General Entertainment and Music Inc. (GEM), an internet protocol television (IPTV) site available to viewers in Canada, has been ordered to pay the Istanbul-based broadcaster Kanal D $10,000 for each of the 2,729 episodes the judge found it to have copied, translated, broadcast and streamed, for a total of nearly $27.3 million in damages. Kanal D, known as Demirören TV Radyo Yayincilik Yapimcilik A.Ş., claimed GEM had been broadcasting its programs live and streaming them on-demand over an IPTV service between 2018 and 2021. According to court documents, Kanal D is one of Turkey’s largest broadcasters, “whose award-winning Turkish television programming is broadcast and streamed not only in Turkey, but throughout the world including in South America, Eastern Europe, the Middle East and Canada.” Kanal D develops, creates, and acquires original content, which is then broadcast and streamed in countries around the world, Federal Court Justice Allyson Whyte Nowak’s recent decision states. It broadcasts its content on its own website and streams it on three digital platforms, as well as its own app for Apple and Android devices. GEM, meanwhile, is a broadcaster with 28 Farsi linear television channels, with programs broadcast by way of subscription satellite services in Iran and other Farsi-speaking communities around the globe, including Canada, court documents state. Justice Whyte Nowak found the evidence submitted by Kanal D shows that the broadcaster’s programming was copied and translated without permission, and then made available to be viewed on the GEM TV website. Whyte Nowak noted that while GEM did file a defence with the court earlier in the case’s timeline, it did not respond to Kanal D’s more recent motion for summary judgement, in which the Turkish broadcaster claimed 3,159 episodes of original television programming were improperly aired. After considering evidence provided to the court, the judge’s summary judgement found that GEM infringed upon Kanal D’s copyright in the case of 2,729 episodes of its programs. A private investigator visited the GEM TV website four times over four days in January 2021 and watched 18 of the 22 programs Kanal D flagged to the court as being theirs. Justice Whyte Nowak wrote that the investigator gave the court video clips of them watching the shows on GEM TV, and that the videos show the number of episodes of each program that were available to be watched on the site. They also used the Wayback Machine site, which allows users to access archived web pages, in February of this year to take screenshots of Kanal D programs the broadcaster alleged were available to watch on GEM TV on dates through 2018 to 2021. While GEM did not deny that the Kanal D programs were available to view on the GEM TV website, it did deny that it owns or operates that site and that it distributed Kanal D’s content. However, Whyte Nowak noted that in a separate statement of claim of its own in another lawsuit, GEM “pleads the exact opposite.” GEM’s own suit against multiple other groups was stayed by the Federal Court in March 2022, in favour of arbitration in Bermuda, Whyte Nowak wrote. The Federal Court of Appeal upheld that order. In that suit, GEM stated that it offers subscribers in Canada “and elsewhere” access to its channels and programs via a website with the same URL as the one in question. Justice Whyte Nowak said GEM’s ownership of the site was also confirmed by way of other court documents. “GEM has not tendered evidence refuting its ownership of the GEM TV website because it cannot do so and its pleading to the contrary in this action was knowingly false,” Whyte Nowak wrote in her decision dated July 18. “Not only did GEM seek to avoid paying licensing fees, but it wrongfully obtained copyright registrations for works that infringed Kanal D’s intellectual property rights and sought to monetize those rights,” Whyte Nowak also wrote. GEM has been ordered to pay Kanal D statutory damages of $10,000 per each of the 2,729 episodes it pirated, for a total of $27,290,000, in addition to costs of $78,512. GEM also has to pay Kanal D prejudgment interest of 5.3 per cent per year on the $10,000 per episode, plus 7 per cent interest from the date of the judge’s decision. The broadcaster had originally asked the court for $15,000 per episode, though the judge decided $10,000 was more appropriate. “A per episode rate that is meaningfully higher than the actual Current Licensing Rate, ensures that GEM and other defendants who might seek to avoid the payment of licensing fees in the future are deterred,” the judge noted. “This court has recognized the ‘enduring harm’ that results from unauthorized broadcasting and streaming which includes an unlimited potential for continued infringement due to the loss of control over the copyrighted works.” The judge also granted Kanal D with a permanent injunction against GEM, saying “I am satisfied that it would be just in the circumstances considering: GEM’s wilful and knowing infringement; its attempts to deny and conceal its infringing activities; and its apparent disregard for court processes.” The Turkish broadcaster also wanted GEM to be accountable for having “induced others” to unlawfully use Kanal D’s programs, however, Justice Whyte Nowak found that the broadcaster did not adequately prove that to be the case. – Reporting by Hannah Daley at hdaley@thewirereport.ca

IPTV site ordered to pay millions in damages to Turkish broadcaster for piracy

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By Hannah Daley
| July 22, 2024

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