     Case: 18-20493      Document: 00515117172         Page: 1    Date Filed: 09/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-20493                       September 13, 2019
                                                                            Lyle W. Cayce
GEOPHYSICAL SERVICE, INCORPORATED,                                               Clerk


              Plaintiff - Appellant

v.

TGS-NOPEC GEOPHYSICAL COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-1368


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-20493
       Geophysical Service, Incorporated (“Geophysical”), a Canadian company
that collects, prepares, and licenses offshore seismic data, appeals the grant of
summary judgment against it on its copyright infringement claim. Because we
agree with the district court that Geophysical granted non-party the Canada-
Newfoundland and Labrador Offshore Petroleum Board (the “Board”) an
implied license to copy and distribute its speculative seismic data, we AFFIRM
the judgment without reaching the parties’ other arguments.
                                  I.     Background
       Canada regulates the use of seismic surveys to explore for petroleum
deposits off the Canadian shore. The 1960 Canada Oil and Gas Regulations
required offshore seismic surveyors to obtain a permit before conducting
surveying operations. After the surveys were conducted, the surveyors were
required to submit the resulting seismic data to the government. This seismic
data could then be released to the public after a set confidentiality period. The
1982 Canada Oil and Gas Act retained the Regulations’ submission
requirements and lengthened the confidentiality period to five years.
       In March 1982, Geophysical submitted a permit application (the
“Offshore Program Notice”) to the Canadian government to conduct a seismic
survey that resulted in the creation of the works at issue in this case (the “GSI
Works”). 1    The precursor to the Board, the Canada Oil and Gas Lands
Administration (the “Administration”), approved Geophysical’s application.
The approved Offshore Program Notice refers to a 1979 publication called
“Offshore Exploration.” Offshore Exploration explains the requirement that
offshore surveyors submit seismic data to the government and provides that


       1The application was actually submitted by Geophysical’s predecessor-in-interest, a
Delaware corporation also called “Geophysical Service Inc.” Through various corporate sales,
the Canadian Geophysical now owns the GSI Works and any copyrights in them that the
Delaware corporation held. Because these sales do not affect the analysis, we refer to both
the Canadian corporation and its Delaware predecessor-in-interest as “Geophysical.”
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members of the public may purchase copies of the released data from the
Administration after the lapse of the confidentiality period.          Geophysical
submitted the first copies of the GSI Works to the Administration in November
1982. Two months later, the Administration issued a report listing seismic
data that it had released to the public and again describing how to request
copies. Included in the list were Geophysical’s data from previous surveys
whose confidentiality period had already expired. Following the release of the
report, Geophysical submitted copies of the GSI Works to the Administration
without protest on four more occasions between March and November 1983.
      In 1999, Appellee TGS-NOPEC Geophysical Co. (“TGS”), a Texas
company that provides global geological data products and services, requested
copies of the GSI Works from the Board (which had since replaced the
Administration as the relevant Canadian regulatory body). The Board sent a
copy to TGS in Texas. Fifteen years later, Geophysical sued TGS for copyright
infringement, claiming direct infringement, contributory infringement, and
unlawful removal of copyright management information. The district court
granted TGS’s motion to dismiss in full, and Geophysical appealed. A different
panel of this court affirmed the district court in part, but reversed and
remanded Geophysical’s direct infringement claim based on unlawful
importation. Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d
785, 792, 796–98, 800 (5th Cir. 2017). 2
      On remand, TGS eventually moved for summary judgment. It argued
that Geophysical had granted the Board an express, or alternatively implied,
license to copy and distribute the GSI Works after the confidentiality period




      2 The court’s opinion in this prior appeal discusses the factual and regulatory
background in more detail.
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expired. The district court granted TGS summary judgment on the implied-
license and express-license theories. Geophysical timely appealed.
                                II.    Discussion
      Geophysical appeals both of the district court’s holdings, and TGS argues
the panel can alternatively affirm the district court under copyright law’s first-
sale doctrine.   Because we agree with the district court that Geophysical
granted the Board an implied license, we do not reach the express-license or
first-sale arguments.
      We review a grant of summary judgment de novo. Mid-Continent Cas.
Co. v. Petroleum Solutions, Inc., 917 F.3d 352, 357 n.7 (5th Cir. 2019). Because
the contention that a defendant possesses a license authorizing use of
materials claimed to be copyrighted is an affirmative defense, TGS would bear
the burden of proof at trial. Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc.,
128 F.3d 872, 884 (5th Cir. 1997). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “If
the moving party meets that burden, the non-moving party must show the
existence of a genuine issue for trial, and the evidence and the inferences must
be viewed in the light most favorable to the non-movant.” HSBC Bank U.S.A.,
N.A. v. Crum, 907 F.3d 199, 202 (5th Cir. 2018).
      Geophysical alleges that, by importing copies of the GSI Works into the
United States, TGS violated its exclusive right to “distribute copies” of the GSI
Works. See 17 U.S.C. § 106(3). Even though the copies were made in Canada,
the lawfulness of importing them into the United States is a question of U.S.
law. See 17 U.S.C. § 602(a)(2) (“Importation into the United States . . ., without
the authority of the owner of copyright under this title, of copies . . ., the making
of which . . . would have constituted an infringement of copyright if this title
had been applicable, is an infringement of the exclusive right to distribute
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copies . . . under section 106 . . . .”). TGS does not dispute that Geophysical
holds a valid copyright in the GSI Works. Thus, the relevant question for this
Court is whether, under U.S. copyright law, Geophysical granted the Board a
license to make and distribute copies of the GSI Works.
       We determine whether an implied license exists based on “the totality of
the parties’ conduct.” Lulirama, 128 F.3d at 879; see Baisden v. I’m Ready
Prods., Inc., 693 F.3d 491, 501 (5th Cir. 2012) (holding that “an implied license
[can] arise . . . where the totality of the parties’ conduct support[s] such an
outcome”). “Consent for an implied license may take the form of permission or
lack of objection.” Baisden, 693 F.3d at 500.
       Here, the totality of the parties’ conduct proves that Geophysical granted
the Board an implied license to copy and distribute the GSI Works. 3 The
relevant Canadian law and publications explicitly provided that the
government could copy and distribute seismic data once the confidentiality
period had expired. The 1982 Canada Oil and Gas Act notes that “information
or documentation furnished . . . in respect of geological or geophysical work
. . . [may be disclosed] . . . on the expiration of five years following the
completion of the work.”        Offshore Exploration similarly provides for this
practice; under the heading “Obtaining Copies of Reports,” it notes that
“[g]eological and geophysical reports including seismic sections and maps may
be purchased after expiry of the confidential period.” Finally, the 1983 report
listing geological data released in accordance with the 1982 Canada Oil and



       3We note that Geophysical in fact granted the Administration, rather than the Board,
an implied license, since the Board was not established until after Geophysical created and
submitted the GSI Works. The 1987 Atlantic Accord Implementation Act that established
the Board directs that any operating licenses the Administration granted were transferred
to the Board. We conclude that the Administration’s implied license was therefore also
transferred to the Board. See 3 NIMMER ON COPYRIGHT § 10.02 [B][4][c] (2019) (noting that
a non-exclusive license should remain intact even when the identities of the parties change,
such as through merger, sale, or reorganization).
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Gas Act also provided that released data could be copied and purchased. Thus,
it was public information that the government copied and distributed seismic
data.
        Along those lines, TGS provided a declaration from the Director General
of the Administration’s Land Management Branch, who, based on more than
40 years of industry experience, stated that offshore seismic surveyors should
have known that the Administration was copying data after the confidentiality
period during the time Geophysical submitted the GSI Works.                        Indeed,
Offshore Exploration was referenced in Geophysical’s Offshore Program
Notice, and the 1983 reports contain multiple examples of Geophysical’s data
that had been released. Yet Geophysical did not object to the government’s
practice of copying and releasing data when it submitted the GSI Works.
        Geophysical argues that it produced evidence that it did not believe the
government would copy its data because the government often declined to copy
“speculative” seismic data; it argues that summary judgment was improper
because of this factual dispute. But Geophysical’s evidence creates no genuine
issues of material fact. Geophysical points to an affidavit from its president in
which he states that “[a]t the relevant times, the government . . . never advised
that it would make available to and directly participate in the copying of the
Seismic Works for other parties.” The president also notes, however, that
“[o]ver time, . . . government entities . . . conduct[ed] their own copying in-house
for third parties.” The 1983 reports also show that the government had a policy
of making speculative data available for copying—including Geophysical’s. 4




        4Geophysical’s reliance on a statement about speculative data in a Canadian court
opinion is similarly unavailing. Geophysical has not even attempted to explain how a judge’s
opinion in that case could be “presented in a form that would be admissible in evidence” in
this one. Fed. R. Civ. P. 56(c)(2).
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                                        No. 18-20493
       Geophysical also points to an affidavit from its chief operating officer,
who states that he understood in 1993 and 1994 that Geophysical retained all
intellectual property rights in its seismic data and that the Board was
protecting Geophysical’s rights. But 1993 to 1994 is not the relevant time
period; we are concerned with the parties’ conduct in 1982—when Geophysical
applied for the permit and began giving copies of the GSI Works to the
Canadian government.
       Even taking the evidence in the light most favorable to Geophysical, the
totality of the parties’ conduct proves that Geophysical granted the Board an
implied license to copy and distribute the GSI Works, and no material fact
issues exist. 5 Therefore, we AFFIRM the district court’s judgment.




       5 Geophysical also argues that even if there is an implied license, it does not cover
exporting the GSI Works to the United States. Other circuits have concluded that the parties’
conduct reveals the scope of the license. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224,
1235 (11th Cir. 2010) (holding that “an implied license will be limited to a specific use only if
that limitation is expressly conveyed”); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th
Cir. 1989) (noting an express license to use software did not include copyright use because
“copyright licenses are assumed to prohibit any use not authorized”). This is consistent with
Baisden’s totality-of-the-circumstances inquiry. Here, there is nothing in the relevant
Canadian law and publications that indicates the Board distributed works only within
Canada, and Geophysical fails to point to any evidence that it intended to so limit the implied
license. To the contrary, the majority of offshore seismic exploration in Canada at the time
was done by American and other foreign companies—including Geophysical. See supra n.1.
Because one of Canada’s stated purposes of releasing the data was to facilitate additional oil
exploration, the foreign companies doing such exploration would be among the data’s logical
recipients. Thus, we reject this argument.
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