If copyright law is the meat of the court’s opinion in DISH Network L.L.C. v. Fraifer et al., ___ F.4th ___, 2026 WL 959813 (April 9, 2026), the evidence and civil procedure discussions are hearty sides.
The dispute concerned the defendants’ making available to viewers Arabic-language programming in which plaintiff DISH Network claimed copyrights. A written agreement between DISH and MBC FZ LLC (“MBC”), a UAE-based broadcasting company, gave DISH the exclusive right to distribute and publicly perform the relevant works in the United States. MBC also registered with the United States Copyright Office four audiovisual works that aired on the channels in question. The defendants, which were owned and controlled by Gaby Fraifer before they went out of business, captured live signals of the relevant Arabic-language channels, “transcoded” those into a format suited for streaming, and then transmitted the channels to customers, including in the United States. That transmission was accomplished using encoders which pushed the programming to content delivery networks, or “CDNs,” which then brought the content closer to viewers’ physical locations.
DISH sued the defendants for copyright infringement. On summary judgment, the district court held that DISH owned valid copyrights in the registered works but determined that factual disputes precluded summary judgment on the infringement element of the claim. After a bench trial, the district court found direct infringement and awarded DISH a permanent injunction and $600,000 in statutory damages, attorneys’ fees, and costs. Defendants appealed.
The opinion on appeal, written by Judge Kidd, reviewed the two requirements for an infringement claim: ownership of a copyright in the works and defendants’ copying protected elements from the works. The Copyright Act requires owners of US works to register the works before bringing suit, but that requirement does not apply to foreign works. If foreign works are registered within five years of publication, as the MBC programs had been, the registrant is entitled to a statutory presumption of ownership. That raised the question whether MBC was the initial owner of the works. “The laws of a work’s country of origin determine initial ownership,” and the parties agreed that UAE law governed the ownership question for the works at issue. Applying definitions of “Joint Works” and “Collective Works” under UAE law, the Eleventh Circuit agreed with the district court that MBC was the initial owner of the works.
Enter bedrock principles of civil procedure: the importance of pleading affirmative defenses and of preserving issues for appeal. The defendants argued that MBC’s US copyright applications erroneously identified the works as “works for hire,” and that that alleged mistake nullified the registrations. But the defendants hadn’t pleaded that defense to validity in their answer. They did later move to amend their answer and add the defense, but the district court denied that motion—and the defendants failed to appeal that decision. MBC was entitled to the statutory presumption of validity.
Still, DISH—as a non-author of the works—had to prove through chain of title that it had a proprietary right in the works. On that point, the defendants claimed that UAE law governed the validity of the transfer of ownership to DISH, but they failed to “offer any supporting arguments besides a single conclusory statement concerning UAE law. . . . As the defendants’ argument is perfunctory, they have abandoned their argument that UAE law applies, and we will apply the laws of the United States.”
The defendants’ US-law arguments as to the validity of the transfer also failed, because the defendants lacked standing to raise them. Quoting Imperial Residential Design, Inc. v. Palms Dev. Grp., 70 F.3d 96, 99 (11th Cir. 1995), the Court observed that “the chief purpose of section 204(a) [of the Copyright Act]. . . is to resolve disputes between copyright owners and transferees. . . .” Third parties accused of infringing are without standing to invoke section 204(a) to contest ownership.
As to the defendants’ copying of protected elements of the works, the court agreed with the district court that the use of encoders to “push” the copyrighted works to CDNs constituted direct infringement, and therefore did not reach the question whether the use of CDNs also constituted infringement.
The court addressed several evidentiary questions in connection with the defendants’ challenges to the admission of testimony and exhibits from DISH’s expert. The defendants claimed that the expert, an attorney who had worked for more than a decade in antipiracy operations, was not qualified to offer testimony about the defendants’ broadcasts because he was not trained in computer science or engineering. But the court found no abuse of discretion in the district court’s admission of the testimony, especially given that the expert “simply identifie[d] television programming that aired over the internet on certain days and times.” The court also rejected the defendants’ arguments that monitoring reports and screenshots admitted with the expert’s report were inadmissible hearsay, finding that DISH properly laid the foundation for the documents’ admission as business records: the expert “authenticated the monitoring reports and screenshots by testifying about how this evidence was acquired and maintained by his team of security analysts in the courts of a ‘standard’ collection process, as well as his knowledge of the information contained within the reports and screenshots.” The defendants’ argument that the expert’s report was inadmissible because the expert merely relied on others’ fact-gathering also failed under FRE 703. (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”).
Finally, the court rejected the defendants’ claim that the district court abused its discretion in admitting certain records from PayPal—which showed Fraifer’s brother making payments to a company for assignment of encoders and registration of IP addresses—and from “WHOIS,” a publicly available directory of contact information. The PayPal records, showing payments during the time of infringement and access to the account from defendants’ offices, were relevant. And the “WHOIS” records were admissible under FRE 803(17)’s hearsay exception for directories and other compilations relied on by the public or by those in particular occupations.