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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-10223
DISH NETWORK L.L.C.,
Plaintiff-Counter Defendant-Appellee,
versus
GABY FRAIFER,
TELE-CENTER, INC.,
PLANET TELECOM, INC.,
individually and together,
d.b.a. UlaiTV,
d.b.a. PlanetiTV,
d.b.a. AhlaiTV,
Defendants-Counter Claimants-Appellants.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:16-cv-02549-TPB-CPT
Before BRANCH, ABUDU, and KIDD, Circuit Judges.
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KIDD, Circuit Judge:
We vacate our prior opinion in this case and substitute the
following opinion in its place.
DISH Network L.L.C. has the exclusive rights to air certain
Arabic-language programming in the United States. The defendants owned a service that allowed their customers in the United
States to view that programming through set-top boxes without
DISH’s permission—and without paying DISH. So, DISH sued the
defendants for copyright infringement and won at the district
court.
In this appeal, the defendants challenge DISH’s ownership
of the copyrighted material, the district court’s determination that
the defendants infringed DISH’s copyrights, and several rulings
that the district court made at the bench trial. We are not persuaded
by any of the challenges, so we affirm the district court’s judgment.
I. BACKGROUND
DISH is a television provider that airs, among other things,
twenty-one Arabic-language channels (“Protected Channels”) in
the United States. DISH delivers its programming to millions of
subscribers by satellite and by over-the-top services using a public
internet infrastructure.
DISH has entered into written agreements with the appropriate networks to exclusively distribute and publicly perform in
the United States all programming that aired on the Protected
Channels. This appeal concerns DISH’s agreements with MBC FZ
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LLC, a media and broadcasting organization located in the United
Arab Emirates (“UAE”) that provides five of the Protected Channels, including MBC1, MBC Drama, MBC Kids/MBC3, MBC Masr,
and Al Arabiya.
In June 2016, MBC registered with the United States Copyright Office four audiovisual works that aired on the Protected
Channels (“Registered Works”). These Registered Works are episodes of television series produced by MBC and first published in
the UAE. They include Sabah Al Khair Ya Arab (Fed. Reg.
# PA0001992320), Tasali Ahla Alam (Fed. Reg. # PA0001992317),
Saherat Al Janoub (Fed. Reg. # PA0001992319), and Chef Hassan
(Fed. Reg. # PA0001992315).
Gaby Fraifer is the founder, sole shareholder, and president
of Tele-Center, Inc., and Planet Telecom, Inc. (collectively, the “defendants”). The defendants owned and operated the UlaiTV and
AhlaiTV services as well as TCI-Direct.com and Planet-itv.com.
UlaiTV and AhlaiTV offered customers access to hundreds of Arabic-language channels, and customers ordered UlaiTV and
AhlaiTV products, including set-top boxes (“STBs”), on TCIDirect.com and Planet-itv.com. By May 3, 2017, the defendants had
gone out of business.
In August 2016, DISH sued the defendants for copyright infringement. DISH alleged that it had the exclusive rights to distribute and publicly perform the works that air in the United States on
the Protected Channels. According to DISH, the defendants unlawfully captured and retransmitted the Protected Channels to
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customers of UlaiTV and AhlaiTV services in the United States
through the sale and distribution of STBs and through their services, which were supplemented by CDNs and encoders.
It worked like this: Once the defendants captured live broadcast signals of the Protected Channels, they would “transcode
these signals into a format useful for streaming over the [i]nternet,
transfer the transcoded content to one or more servers provided,
controlled, and maintained by [d]efendants, and then transmit the
Protected Channels to users of their [s]ervices through [over-thetop] delivery, including users in the United States.”
The defendants transmitted the Protected Channels over the
internet to users of their STBs using content delivery networks
(“CDNs”), which are groups of internet servers that are distributed
throughout the world. The CDNs brought content close to the
physical location of each end user, which improved the reliability
and stability of the customers’ internet viewing experience. The
defendants also used encoders to push the Protected Channels onto
their CDNs. “Encoders . . . transformed the Protected Channels
and the [Registered] Works airing on those channels into formats
suited for streaming.”
The parties each filed motions for summary judgment regarding the two elements of the test for copyright infringement:
(1) DISH’s ownership of valid copyrights in the Registered Works;
and (2) the defendants’ alleged infringement of those copyrights.
The district court ruled in DISH’s favor on the issue of ownership
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but found a genuine issue of material fact as to the defendants’ alleged infringement.
The case proceeded to a bench trial, and the district court
subsequently ruled in favor of DISH, awarding it a permanent injunction and $600,000 in statutory damages, attorney fees, and
costs. The district court found that the defendants’ use of CDNs
and their use of encoders were each sufficient to establish direct
copyright infringement.
The defendants appeal the district court’s judgment.
II. STANDARD OF REVIEW
We review the district court’s order granting summary judgment de novo. Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290
(11th Cir. 2011). “In conducting our review, we apply the same legal
standards as the district court . . . [and thus] review the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in [its] favor.” Id. (citing Acevedo v. First Union Nat’l
Bank, 476 F.3d 861, 865 (11th Cir. 2007)).
For a bench trial, we review de novo the district court’s conclusions of law, but we review findings of fact for clear error. Compulife Software Inc. v. Newman, 959 F.3d 1288, 1301 (11th Cir. 2020).
We review for abuse of discretion the district court’s evidentiary
rulings, including its “decisions regarding the admissibility of expert testimony and the reliability of an expert opinion.” United
States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (citing Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141–43 (1997)).
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III. DISCUSSION
DISH must first present a prima facie case of copyright infringement. To do so, DISH must show that (1) it owns a valid copyright in the works and (2) the defendants copied protected elements from the works. Saregama, 635 F.3d at 1290. We begin with
ownership.
A. Ownership
The Copyright Act requires owners of United States works
to register their works before instituting an infringement action, 17
U.S.C. § 411(a), but the same is not true for owners of “foreign
works.” Kernel Recs. Oy. v. Mosley, 694 F.3d 1294, 1302 (11th Cir.
2012) (citation omitted). Yet “foreign works can also be registered
. . . because Congress has granted substantial litigation benefits to
owners of registered works.” Id. In addition, a certificate of registration, if “made before or within five years after first publication
of [a] work [,] . . . constitute[s] prima facie evidence of the validity
of [a] copyright and of the facts stated in the certificate.” 17 U.S.C.
§ 410(c); see Kernel Recs., 694 F.3d at 1302 (“A certificate of registration serves as prima facie evidence of copyright validity.” (citing 17
U.S.C. § 410(c)). Thus, this statutory presumption of validity applies to registered foreign works. Id. Because MBC registered each
episode of the Registered Works with the Copyright Office within
three months of the work’s first publication, MBC was entitled to
a statutory presumption of ownership. See 17 U.S.C. § 410(c).
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But the statutory presumption of ownership does not end
our inquiry because DISH is not the author of the copyrighted
works. “If a plaintiff is not the author of the copyrighted work[,]
then [the plaintiff] must establish a proprietary right through the
chain of title in order to support a valid claim to the copyright.”
Motta v. Samuel Weiser, Inc., 768 F.2d 481, 484 (1st Cir. 1985). When
evaluating chain of title, courts determine the initial owner of a
copyrighted work and then assess whether the initial owner transferred its exclusive or non-exclusive rights to the new owner. See
John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394, 410 (2d Cir. 2018).
1. Initial Ownership
The laws of a work’s country of origin determine initial
ownership. Saregama, 635 F.3d at 1290. The parties agree that UAE
copyright law governs, and they cite to UAE Federal Law No. (7) of
the Year 2002 Concerning Copyrights and Neighboring Rights.1
But they disagree as to whether the works should be considered
“Joint Works,” as the defendants contend, or “Collective Works,”
as DISH asserts. This distinction matters because it controls
whether MBC initially owned the Registered Works. The district
court agreed with DISH and found that they were Collective
Works.
1 Both parties rely on the same translation of the operative UAE statute. World
Intellectual Property Organization [WIPO], Federal Law No. (7) of the Year 2002
Concerning Copyrights and Neighboring Rights, WIPO Doc. AE001EN (Jan. 7,
2002), https://www.wipo.int/wipolex/en/legislation/details/7
[https://perma.cc/54MV-GZ8R].
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Under Article 1 of UAE copyright law, a Joint Work “is the
work compiled by a number of persons whether the lot of each
one can be separated or not and which cannot be listed under the
collective works.” WIPO, supra note 1, at 4. Under Article 27 of
UAE copyright law:
A joint author in the audio-visual, audio or visual
work can be: 1. The scenarist[;] 2. The one who modifies a literary existing work to an appropriate audiovisual method[;] 3. The dialogist[;] 4. Music composer
if he composes it specifically for the work[;] 5. The
director if he practi[c]es actual supervision to accomplish the work.
Id. at 11. The defendants relied on their expert, UAE intellectual
property specialist Bassel El Turk, to argue that under Article 27,
an audiovisual work must be a Joint Work as a matter of law because the contributors to an audiovisual work are listed separately.
See id. In support of this interpretation, the defendants provide
screenshots from the opening and closing credits of the Registered
Works. The credits list individuals performing the roles set forth in
Article 27.
By contrast, DISH maintains that the MBC audiovisual
works are Collective Works under UAE copyright law. Under Article 1, a Collective Work is:
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The work compiled by a group of authors under the
direction of a natural or legal person who pledges to
publish it in his name and under his own supervision.
The contribution of authors will be assimilated into
the public goal aimed by such a person in such a way
that separation and distinction of each author’s contribution becomes impossible.
WIPO, supra note 1, at 3. Under Article 26, “[t]he natural or legal
person who has directed creation of the collective work can
practi[c]e alone the author’s economic and literary rights in it unless there is an agreement otherwise.” Id. at 11.
DISH argues that merely identifying individuals along with
their titles in the opening and closing credits of the Registered
Works does not establish that each individual’s contributions can
be separated or distinguished, as required by UAE law. DISH supports its position with the declaration of John Richard Whitehead,
MBC’s Group General Counsel. The declaration states that MBC
never intended for the authors’ contributions to the Registered
Works to be separable or distinct. Moreover, the authors who participated in creating the Registered Works performed overlapping
roles, making it impossible to distinguish each author’s contributions. DISH further asserts that Article 27 simply identifies persons
that “can be” a joint author in an audiovisual work and makes such
persons authors as a matter of law.
We agree with DISH. A plain reading of the definition of a
Joint Work establishes that a work created by multiple authors may
qualify as a Joint Work only if the definition of a Collective Work
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is not met. Id. at 4. The definition of a Collective Work requires
that the contributions of the authors cannot “be separated or distinguished.” Id. at 3–4. In this case, “authors in various departments
[including] script writing, literary adaption, dialog, musical composition, graphics, [and] directing . . . contributed to the MBC Works
and performed overlapping roles.” In this way, each MBC audiovisual work was meant to be viewed as a whole, and it had been marketed in this manner.
The defendants’ screenshots do not alter our analysis. For
example, Whitehead explained in his declaration that a scripted
work is the product of an author who writes a first draft, another
who edits the script, and another who makes additional revisions
to the script. Despite this, “[t]he credits may only identify the original script writer, although other persons contributed to the creation of the final script,” thus making the contributions impossible
to separate or distinguish.
The defendants’ reading of Article 27 would broaden the
definition of a “Joint Work” to encompass all audio-visual works.
See id. at 4, 11. But the language of Article 27 does not support this
blanket categorization. Id. at 11. Article 27 uses the phrase “can be”
to identify which contributors to a work may be considered joint
authors. Id. In other words, Article 27 identifies a limited number
of roles, such as the scenarist and the dialogist, that may qualify as
joint authors when their collaboration meets the definition of a
Joint Work. Id. To classify all audiovisual works as Joint Works
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because they have multiple contributors would erase the distinction between Joint Works and Collective Works.
Article 26 of UAE copyright law, which governs Collective
Works, vests the rights of each author in the person or entity that
directs the creation of the work, unless there is an agreement otherwise. Id. Here, MBC directed the creation of the Registered
Works and has acquired all the economic and literary rights in the
works.
We conclude that DISH has established MBC’s initial ownership in the Registered Works pursuant to Article 26.
2. Validity of the Registrations
Tangentially, the defendants contend that MBC’s United
States copyright registration applications are not accurate and cannot be given deference because they identify the Registered Works
as “works made for hire,” which UAE law does not recognize. Under 17 U.S.C. § 101, a “work made for hire” is created “by an employee [working] within the scope of . . . employment,” or where
each contributor to a collective work expressly agrees that the work
shall be considered a work made for hire in a written and signed
instrument.
DISH explains that the copyright registrations properly identify the Registered Works as works made for hire because a copyright applicant is required to submit its application using principles
of United States copyright law, even when registering a non-United
States work. Moreover, DISH asserts that any error was not suffi-ciently material to invalidate the registrations. Finally, DISH points
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out that this challenge should have been raised as an affirmative
defense.
We start and end with the last point: The defendants should
have raised this challenge as an affirmative defense and failed to do
so. Roberts v. Gordy, 877 F.3d 1024, 1028 (11th Cir. 2017) (“[T]he district court’s review of validity was . . . the determination of an affirmative defense.”); see also Bateman v. Mnemonics, Inc., 79 F.3d
1532, 1541 (11th Cir. 1996) (“Once the plaintiff produces a certifi-cate of copyright, the burden shifts to the defendant to demonstrate why the claim of copyright is invalid.”). “Correspondingly,
failure to plead an affirmative defense typically results in waiver of
that defense.” Roberts, 877 F.3d at 1028. We recognize that the defendants moved to amend their answers to include this affirmative
defense. But the district court denied the motion, noting that discovery had closed and the motions for summary judgment had
been filed. The defendants do not appeal this ruling, so we find no
reason to revisit it.
In sum, MBC is entitled to a statutory presumption of ownership under 17 U.S.C. § 410(c) because the Registered Works are
considered Collective Works under UAE law and the defendants
failed to challenge the validity of the copyright registration as an
affirmative defense. We therefore conclude that MBC initially
owned the copyrights in the Registered Works, which are validly
registered with the United States Copyright Office.
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B. Transfer of Ownership
Having determined that MBC initially owned the copyrights
in the Registered Works, we must now determine whether MBC
properly transferred ownership to DISH. The defendants argue
that MBC’s copyrights in the Registered Works were not properly
transferred to DISH because the agreements between MBC and
DISH do not satisfy the requirements of UAE copyright law. DISH
counters that MBC and its affiliates properly transferred copyrights
that included the exclusive right to publicly perform the Registered
Works in the United States. DISH submits that the transfer of copyrights should be assessed under United States law and not UAE
law, while the defendants insist that UAE law governs but offer no
binding or persuasive authority to support their position. Nor do
they offer any supporting arguments besides a single conclusory
statement concerning UAE law. “We have long held that an appellant abandons [an issue] when he either makes only passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014). 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 present several arguments to challenge the
district court’s determination that the licensing agreements between DISH and MBC properly transferred copyrights under sections 201(d) and 204(a) of the Copyright Act. Most of them fail for
a simple reason: Section 204(a) does not permit the defendants to
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challenge the sufficiency of the written agreements transferring
ownership of the copyrights.
In Imperial Residential Design, Inc. v. Palms Development Group,
Inc., we held that “the chief purpose of section 204(a) [of the Copyright Act] . . . is to resolve disputes between copyright owners and
transferees and to protect copyright holders from persons mistakenly or fraudulently claiming . . . copyright ownership.” 70 F.3d 96,
99 (11th Cir. 1995). Section 204(a) states that “[a] transfer of copyright ownership, other than by operation of law, is not valid unless
an instrument of conveyance, or a note or memorandum of the
transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204(a).
Accordingly, we determined that it would be “unusual and unwarranted to permit a third-party infringer to invoke section 204(a)”
where, as here, “there is no dispute between the copyright owner
and the transferee about the status of the copyright.” Imperial Residential Design, Inc., 70 F.3d at 99.
In this case, the district court found that the licensing agreements between DISH and MBC properly transferred the copyrights. And there is no dispute about the status of the copyright
ownership between MBC, the original copyright owner, and DISH,
the transferee. DISH’s declaration from an MBC representative affirms that MBC transferred the exclusive rights in question to
DISH, so the defendants are precluded from challenging the suffi-ciency of the written agreements transferring the copyrights from
MBC to DISH.
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In addition to challenging the sufficiency of the written
agreements, the defendants raise two other arguments regarding
the transfer of ownership. First, they contend that DISH failed to
show that it owned one of the Registered Works, Saherat Al
Janoub, because the registration certificate did not identify a season
number. Second, they argue that two of the Registered Works, Saherat Al Janoub and Sabah Al Khair Ya Arab, were improperly registered because MBC transferred the copyrights to its Luxembourg
affiliate before the registrations were filed. The defendants cite no
legal authority to support these two reasons to invalidate the copyright transfers. We therefore decline to consider them. Sapuppo,
739 F.3d at 681.
C. Copyright Infringement
DISH has established that it owns the copyrights in the Registered Works. We must now determine whether the defendants
infringed upon DISH’s copyrights—in other words, whether the
“defendants copied protected elements from the [works].”
Saregama, 635 F.3d at 1290 (citation modified).
Under the Copyright Act, infringement occurs when any of
the copyright owner’s exclusive rights are violated. 17 U.S.C.
§ 501(a). One of these exclusive rights, “in the case of . . . audiovisual works, [is] to perform the copyrighted work publicly.” 17 U.S.C.
§ 106(4). “To perform . . . a work ‘publicly’ means . . . [among other
things] to transmit . . . a performance . . . of the work . . . to the
public, by means of any device or process . . . .” 17 U.S.C. § 101. If
the images or sounds comprising a work “are received beyond the
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place from which they are sent,” then the work was transmitted.
Id. Moreover, “an infringing performance that originates abroad
but terminates in the United States constitutes a domestic Copyright Act violation.” Spanski Enters., Inc. v. Telewizja Polska, S.A., 883
F.3d 904, 916 (D.C. Cir. 2018).
As relevant here, direct “[c]opyright infringement is a strict
liability offense,” so DISH need not “prove unlawful intent or culpability.” See EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d
79, 89 (2d Cir. 2016). By contrast, secondary liability requires culpable conduct: “One infringes contributorily by intentionally inducing or encouraging direct infringement, . . . and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 930–31 (2005) (citation modified).
DISH alleged that the defendants violated its copyrights in
two different ways. First, they used CDNs to transmit the Protected
Channels that aired the Registered Works to the STBs that they
sold to the public. Second, the defendants used encoders to “push”
the Registered Works onto the defendants’ CDNs for transmission
to the STBs.
The district court found each of these methods independently sufficient to prove direct copyright infringement. The
defendants appeal these findings and dispute the admissibility of
the evidence the district court considered. We agree with the district court that the defendants’ use of encoders constitutes direct
copyright infringement. Since we affirm the district court as to the
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use of encoders—an independently sufficient basis to find copyright infringement—we need not reach the issue of whether the
defendants’ use of CDNs also constituted copyright infringement.
We first address the defendants’ challenges to DISH’s expert
testimony and evidence in support of direct infringement, and
then we address their evidentiary challenges to the PayPal and
WHOIS records.
1. Expert Testimony and Evidence
The district court relied on testimony and evidence from
Pascal Metral, DISH’s expert witness, to find that the defendants’
conduct constituted direct copyright infringement. On appeal, the
defendants challenge the admissibility of this testimony and evidence. First, the defendants argue that Metral was not qualified to
testify as an expert. Second, they dispute the admissibility of Metral’s accompanying exhibits, including the monitoring reports, the
screenshots, and his expert report. And even if we find that this evidence was properly admitted, the defendants argue it was insuffi-cient to show that the Registered Works were transmitted in the
United States.
a. Expert Qualification
Federal Rule of Evidence 702 governs the admissibility of
expert testimony. 2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
2 Federal Rule of Evidence 702 states: “A witness who is qualified as an expert
by knowledge, skill, experience, training, or education may testify in the form
of an opinion or otherwise if the proponent demonstrates to the court that it USCA11 Case: 24-10223 Document: 62-1 Date Filed: 08/06/2026 Page: 18 of 28
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589–95 (1993). In applying Rule 702, our analysis requires us to determine whether:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort
of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application
of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.
1998). And “[w]hile there is inevitably some overlap among the
basic requirements—qualification, reliability, and helpfulness—
they remain distinct concepts and the courts must take care not to
conflate them.” Frazier, 387 F.3d at 1260. The defendants focus their
arguments on the qualification and reliability requirements.
The defendants argue that Metral’s testimony should have
been excluded because he was not qualified to testify as an expert.
They contend he is an attorney who has no training in computer
science or engineering. According to Rule 702, a witness may be
qualified based on “knowledge, skill, experience, training, or
is more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the
expert's opinion reflects a reliable application of the principles and methods to
the facts of the case.”
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education.” Fed. R. Evid. 702 (emphasis added). If a witness is “relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Frazier, 387 F.3d at 1261 (quoting Fed. R. Evid. 702 advisory committee’s note to 2000 amendment).
The district court observed that Metral, during his twelve
years of experience in antipiracy operations, “supervised the monitoring and investigation of copyright infringement on behalf of
the International Broadcaster Coalition Against Piracy (‘IBCAP’)[,]
. . . and he was responsible for investigating not only [the d]efendants’ STBs but also more than 100 additional television streaming
services on behalf of members of IBCAP.” While the district court
acknowledged Metral’s lack of technical training and that he had
done legal work for DISH prior to this case, it still found him qualified to testify as an expert based on his experience
Regarding reliability, the district court found that “Metral’s
analysis [was] sound, and his conclusions [were] reliable.” To determine reliability, courts may assess: “(1) whether the expert’s theory
can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential
rate of error of the particular scientific technique; and (4) whether
the technique is generally accepted in the scientific community.” Id.
at 1262 (citation omitted). These factors, however, are “illustrative,
not exhaustive” as trial judges must have “considerable leeway” in
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determining reliability. Id.; Knight ex rel. Kerr v. Miami-Dade County,
856 F.3d 795, 808 (11th Cir. 2017). Lastly, to be admissible, expert
testimony must be helpful to the factfinder. Fed. R. Evid. 702(a).
The district court found Metral’s analysis to be straightforward because he “simply identifie[d] television programming that
aired over the internet on certain days and times.” Metral identified
861 occurrences where the Protected Channels were transmitted
to users of the defendants’ STBs. To do so, he used the defendants’
STBs to watch television programming, took screenshots of programs that he watched, and “identif[ied] the video stream URLs
corresponding [to] the CDNs used in transmitting the Protected
Channels to STBs.” His findings were reviewed by a security technician for accuracy and “confirmed by the deposition testimony of
representatives from the networks that exclusively licensed the
Protected Channels to [DISH].” Moreover, “the [n]etworks identified specific, copyrighted audiovisual works exclusively licensed to
[DISH] that were depicted in the screenshots or that otherwise
aired on the Protected Channels on the dates the channels were
transmitted to STBs as indicated in Metral’s report.”
We find no abuse of discretion in the district court’s allowing
Metral to testify as an expert. The district court is afforded wide
discretion in evaluating the qualification and reliability of experts,
United States v. Costa, 691 F.2d 1358, 1361 (11th Cir. 1982), and our
review of its decisions has a “limited scope,” Rubinstein v. Yehuda,
38 F.4th 982, 998 (11th Cir. 2022). Here, the district court weighed
the flaws that the defendants identified in Metral’s qualifications
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and qualified him nonetheless in light of his extensive experience.
We cannot say this was an abuse of discretion, particularly as the
defendants cite no caselaw requiring an expert to possess technical
training or education. Nor was it improper for the district court to
find Metral’s straightforward, well-documented analysis to be reliable.
b. Monitoring Reports and Screenshots
The defendants argue that the district court should have excluded the monitoring reports and screenshots accompanying Metral’s testimony because they are inadmissible hearsay created in
anticipation of litigation. We disagree, because DISH properly laid
the foundation to admit these exhibits under the business records
exception to the hearsay rule, codified in Federal Rule of Evidence
803(6). 3 Metral authenticated the monitoring reports and screenshots by testifying about how this evidence was acquired and maintained by his team of security analysts in the course of a “standard”
collection process, as well as his knowledge of the information
3 Federal Rule of Evidence 803(6) states: “A record of an act, event, condition,
opinion, or diagnosis if: (A) the record was made at or near the time by — or
from information transmitted by — someone with knowledge; (B) the record
was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record
was a regular practice of that activity; (D) all these conditions are shown by
the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information
or the method or circumstances of preparation indicate a lack of trustworthiness.”
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22 Opinion of the Court 24-10223
contained within the reports and screenshots. In re Int’l Mgmt. Assocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (noting that the authentication burden is light and that if the “court believed [the] testimony, it could have reasonably concluded that the underlying
documents were a true and authentic record”). Nor did the defendants show that the exhibits lacked trustworthiness. Thus, the district court properly admitted the monitoring reports and screenshots into evidence over the defendants’ hearsay objection.
c. Expert Report
The defendants argue Metral’s expert report should have
been excluded under Federal Rule of Evidence 1006 4 because he
offered no opinion and instead merely summarized “other people’s
fact gathering work conducted for the purposes of litigation.” This
argument fails because Federal Rule of Evidence 703 allowed Metral to rely on work performed by others that he supervised. Fed.
R. Evid. 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.” (emphasis added)); Knight, 856 F.3d at 809 (holding an expert properly considered photos and investigative reports prepared
by others). Furthermore, the monitoring reports and screenshots
upon which Metral relied were properly admitted, as discussed
4 Federal Rule of Evidence 1006 states, in relevant part: “Summaries of Voluminous Materials Admissible as Evidence. The court may admit as evidence a
summary, chart, or calculation offered to prove the content of voluminous
admissible writings, recordings, or photographs that cannot be conveniently
examined in court, whether or not they have been introduced into evidence.” USCA11 Case: 24-10223 Document: 62-1 Date Filed: 08/06/2026 Page: 23 of 28
24-10223 Opinion of the Court 23
above. Thus, the defendants’ challenge to Metral’s expert report as
an improper Federal Rule of Evidence 1006 summary of this evidence fails.
In sum, we conclude the district court did not abuse its discretion by admitting Metral’s expert testimony and the accompanying exhibits.
d. Transmission in the United States
The defendants argue that Metral’s testimony and the accompanying exhibits, even if properly admitted, were insufficient
to support the district court’s finding of direct copyright infringement because they did not establish that the Registered Works
were publicly performed in the United States. The defendants rely
on the fact that some of the evidence of the transmissions was captured in Switzerland. But as the district court noted, the defendants
“ignore[] the fact that only a fraction of the offending transmissions . . . were captured in Switzerland, while the remainder were
captured in Colorado.” The majority of the screenshots—and thus
the transmissions—were captured in the United States. And even
those screenshots that were collected using computers in Switzerland were collected on computers that were using a virtual private
network based in Texas. Thus, the screenshots provide strong circumstantial evidence that the defendants were streaming directly
to end users physically located in the United States, even when the
computers that captured those screenshots were not physically in
the United States.
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24 Opinion of the Court 24-10223
We discern no clear error in the district court’s finding that
the Registered Works were transmitted in the United States.
2. PayPal and WHOIS Records
To prove that the defendants’ use of encoders constituted
direct copyright infringement, DISH introduced records from PayPal and WHOIS. The defendants contest the admissibility and the
import of these records.
a. PayPal
The defendants argue that the PayPal records, DISH’s Exhibits 76 and 77, should have been excluded as irrelevant. The records
showed payments by Fraifer’s brother to Cetel, a German company
that assigned certain IP addresses of the German encoders to the
defendants and registered those IP addresses in Fraifer’s name. The
defendants claim these exhibits do not prove that they used encoders because these payments were made by a third party (Fraifer’s
brother) around the time that the defendants went out of business
after the Registered Works purportedly aired in the United States.
DISH counters that Cetel payments were made in February and
April of 2017, which was during the time of the defendants’ infringement from June 2015 to May 2017. DISH also highlights the
evidence from trial showing that the PayPal account was accessed
345 times from the defendants’ offices in Tampa, Florida.
As the district court put it, the PayPal records indicated that
“somebody in Tampa was logging onto a Pay[P]al account registered to Fraifer’s brother . . . and making payments to Cetel.” When
confronted with this evidence at trial, Fraifer first denied accessing
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the PayPal account or instructing his brother to do so, but then
changed his story to explain that his brother must have accessed the
PayPal account when he visited the Tampa offices. The district
court found Fraifer’s testimony “very difficult to accept as true”
considering the records showed that the “Pay[P]al account registered to Fraifer’s brother in Canada was accessed 351 times over a
five-month period, and 345 of the 351 logins were from [the]
[d]efendants’ Tampa offices.”
Contrary to the defendants’ contentions, the district court
found the PayPal records relevant to its findings for two reasons.
First, the PayPal records showed that Fraifer’s brother made payments to Cetel in February and April of 2017, which was during the
infringement period. Second, the district court found the PayPal
records relevant in assessing the credibility of Fraifer’s testimony.
We find no abuse of discretion in the district court admitting
the PayPal records.
b. WHOIS
The defendants also argue that the WHOIS records—
DISH’s Exhibits 83 and 84—were improperly admitted over their
hearsay and authenticity objections. WHOIS is a publicly available,
online database that allows users to “access information regarding
domains, including the registrant’s name, address, phone number,
and e-mail address.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1064
n.22 (9th Cir. 2009). DISH’s Exhibit 83 showed that the IP addresses
of the German encoders were registered in Fraifer’s name and were
assigned to Cetel. DISH’s Exhibit 84 pertained to the domain name
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26 Opinion of the Court 24-10223
“kakalinka.com.” The district court admitted Exhibit 84 after counsel for DISH, at the behest of the court, pulled up the exhibit on
the internet to verify, live, that the exhibit matched the website
listed—an investigation to which Fraifer did not object. After comparing the two, counsel for Fraifer stated that he would “accept
[counsel for DISH’s] representation” that the documents matched
each other.
Regarding the hearsay challenge, the WHOIS records fall
within Federal Rule of Evidence 803’s hearsay exception for directories and other compilations relied upon by the public or by persons in particular occupations. Fed. R. Evid. 803(17). 5 We note in
particular that federal trial courts have relied upon such documents
to determine the registered party for domains or IP addresses. See,
e.g., Tracfone Wireless, Inc. v. Technopark Co., 313 F.R.D. 680, 685 (S.D.
Fla. 2016); Am. Online, Inc. v. aol.org, 259 F. Supp. 2d 449, 452 n.3
(E.D. Va. 2003); Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573,
576 (N.D. Cal. 1999).
As to authenticity, Federal Rule of Evidence 901 permits authentication of a document through the “[t]estimony of a [w]itness
with [k]nowledge,” or by “[t]he appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances.” Fed. R. Evid. 901(b)(1),
5 Federal Rule of Evidence 803(17) states, in relevant part, that “[m]arket quotations, lists, directories, or other compilations that are generally relied upon
by the public or by other persons in particular occupations” are excepted from
the hearsay prohibition.
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(4). DISH’s Exhibit 83 was properly authenticated by its “distinctive
characteristics,” including its domain name, date, and time, which
appear on the face of the WHOIS records and identify where and
when the document was obtained. See United States v. Smith, 918
F.2d 1501, 1510 (11th Cir. 1990) (holding authentication may be established “solely through the use of circumstantial evidence”). At
trial, counsel for DISH did not identify who printed the document,
although the circumstantial context in the record suggests that
counsel was familiar with the person who did. Given this context,
we cannot say that the district court abused its discretion in making
the implicit ruling that counsel had personal knowledge about
when and how the document was printed.
As for DISH’s Exhibit 84, the defendants failed to preserve
their ability to challenge its admission after their counsel “accepted
[DISH’s] representation” that the submitted WHOIS record
matched the website listed on this exhibit.
Thus, the district court did not abuse its discretion by admitting the WHOIS records.
c. Operation of Encoders
The defendants alternatively argue that the PayPal and
WHOIS records do not show that the defendants themselves operated the encoders located in Germany and Tampa, Florida. Specifically, they argue that “to the extent the[] [encoders] were in use,
they were being used by third parties and not [the] [d]efendants.”
The defendants focus only on the district court’s consideration of the PayPal and WHOIS records in finding that the
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defendants operated the encoders. But the district court also found
that, even without the PayPal and WHOIS records, the remaining
evidence showed that the defendants “undertook the volitional act
of introducing or ‘pushing’ [DISH’s] copyrighted works onto their
system for customer viewing.”
The defendants overlook the district court’s explanation that
“the fact that [the] [d]efendants were ‘pushing’ [DISH’s] copyrighted programming . . . is established by [the] [d]efendants’
emails and witness testimony.” The district court considered email
communications from Fraifer to Verizon on the use of the Germany-based encoders between February 25, 2016, and May 4, 2016.
It also considered the deposition testimony of Sajid Maqsood, a
consultant that the defendants retained in 2015, that confirmed the
use of approximately 21 to 25 encoders located in Germany. And it
considered email communications between Verizon and Adib Sfeir,
one of the defendants’ employees, on the use of encoders located
in Tampa, Florida. Notably, the defendants do not challenge these
email communications or the witness testimony the district court
considered.
Based on this totality of the evidence, the district court did
not clearly err in finding that the defendants operated the encoders.
IV. CONCLUSION
The district court’s judgment is AFFIRMED.