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`No. 20A-_______
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`In the
`Supreme Court of the United States
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`GEOPHYSICAL SERVICE, INCORPORATED,
`Applicant,
`
`v.
`TGS-NOPEC GEOPHYSICAL COMPANY,
`Respondent.
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Fifth Circuit
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`APPLICATION FOR EXTENSION OF TIME TO FILE
`A PETITION FOR WRIT OF CERTIORARI
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`Don Cruse
` Counsel of Record
`Law Office of Don Cruse
`1108 Lavaca Street,
` Suite 110-436
`Austin, Texas 78701
`(512) 853-9100
`don.cruse@texasappellate.com
`
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`
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`Rule 29.6 Statement
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`The applicant, Geophysical Service, Incorporated, states that: (1) it has no
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`parent corporation; and (2) no publicly held company owns 10% or more of its stock.
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`i
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`No. 20A-_______
`
`In the
`Supreme Court of the United States
`
`GEOPHYSICAL SERVICE, INCORPORATED,
`Applicant,
`
`v.
`TGS-NOPEC GEOPHYSICAL COMPANY,
`Respondent.
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Fifth Circuit
`
`
`
`
`
`APPLICATION FOR EXTENSION OF TIME TO FILE
`A PETITION FOR WRIT OF CERTIORARI
`
`To the Honorable Samuel A. Alito, Jr.,
`Associate Justice of the United States Supreme Court and
`Circuit Justice for the Fifth Circuit:
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`
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`Pursuant to Supreme Court Rule 13.5, the applicant Geophysical Service, Inc.
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`(GSI) moves for an extension of time of 30 days, to and including January 13, 2020, to file
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`a petition for writ of certiorari to review the decision and judgment of the Fifth Circuit in
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`Geophysical Service, Inc. v. TSG-NOPEC Geophysical Co., No. 18-20493 (5th Cir. Sept. 13,
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`2019) (per curiam). Jurisdiction rests on 28 U.S.C. §1254(1). Absent an extension, the
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`deadline for filing the petition for writ of certiorari would be December 12, 2019. This
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`application is being filed at least 10 days before that date. S. Ct. R. 13.5. The request for
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`extension is not opposed.
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`1
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`1.
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`This case presents important questions of copyright law, including the legal
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`standard for determining the existence and proper scope of an “implied license” when a
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`company in a regulated industry is required to deposit some of its copyrighted works with
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`a foreign governmental regulator.
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`2.
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`The dispute involves offshore seismographic survey materials created by
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`GSI at its own expense, for the purpose of being licensed at a profit to other energy firms.
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`The Fifth Circuit concluded that, by complying with a depository requirement of Canadian
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`energy law, GSI had thereby conveyed an “implied license” under U.S. copyright law, and
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`that this “implied license” was sufficiently broad for copies of its seismographic works to
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`later be imported into the United States by TGS, a competing seismographic firm.
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`
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`3.
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`In its first opinion in this matter, the Fifth Circuit observed that this dispute
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`involves “a question left open by Kirtsaeng I. … the difficult interpretive puzzle of what it
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`means for a copy manufactured abroad to have been ‘lawfully made under this title’ within
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`the meaning of §109.” Geophysical Serv. v. TGS-NOPEC Geophysical Co., 850 F.3d 785,
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`795 (5th Cir. 2017) (citing Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013)).
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`
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`4.
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`The Fifth Circuit explained how “the facts of the instant case supply a good
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`example of the puzzle”:
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`[A]as in Kirtsaeng I, the copies imported into the United States here were
`manufactured abroad, but unlike in Kirtsaeng I, the parties dispute whether
`those copies were lawfully made. TGS would have us look to Canadian law
`to determine the lawfulness of the Board’s making of the copies—it points
`to the fact that Canadian law appears to authorize the CNLOP Board to
`release copies of data submitted to it after ten years. Geophysical asks us
`instead to look to United States copyright principles … Applying foreign law
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`2
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`
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`seems to contradict the plain language of §109.… But applying United
`States law seems to foul the principle that the Copyright Act has no
`extraterritorial application, and creates some conceptual awkwardness
`where, like here, the foreign-made copies were made pursuant to some legal
`regime that finds no analog in United States law.”
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`850 F.3d at 795-96. The Fifth Circuit remanded for the district court to analyze this legal
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`question in the first instance, and then to apply it to the facts of this case. Id. at 796.
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`5.
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`On remand, the district court concluded that, under Kirtaeng I, the question
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`of whether copies were lawfully made abroad was controlled by United States copyright
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`principles. Geophysical Servs. v. TGS-NOPEC Geophysical Servs., No. 14-1368, 125
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`U.S.P.Q.2d 1118, 2017 WL 5598593, 2017 U.S. Dist. LEXIS 192803, at *25 (S.D.T.X.
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`Nov. 21, 2017). Thus, it interpreted the phrase “lawfully made under this title” to “mean
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`that a a copy is lawful if it was made … in a foreign country in a manner that would
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`comply with Title 17 if United States copyright law applied.” Id.
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`7.
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`Applying its view of Kirtsaeng I, the district court then granted summary
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`judgment on a “license” defense, concluding that a company like GSI doing business in
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`Canada’s energy sector during this time was necessarily granting a copyright license to
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`the Canadian government, not just to use the works for its own purposes, but to make
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`copies of those works for importation back into the United States at the direction of TGS.
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`The Fifth Circuit affirmed on the basis of implied license. Slip op. at 5 & 7 n.5.
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`8.
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`The case involves important questions about “implied license” and, as the
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`Fifth Circuit observed, one of those questions is how this type of “implied license”
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`defense fits in the framework established by Kirtsaeng I, for which “the facts of the
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`3
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`
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`instant case supply a good example of the puzzle.” 850 F.3d at 795. When a foreign
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`regulatory regime demands that a copyrighted work be deposited with the government, are
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`copies later made at the direction of a third party “lawfully made under Title 17” such
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`that the copyright owner cannot exclude their importation into the United States?
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`10.
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`The case also presents a divide between the circuits about who bears the
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`substantive and procedural burdens of an “implied license” defense. For express license,
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`these burdens fall on the party seeking to avoid copyright liability. S.O.S., Inc. v. Payday,
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`Inc., 886 F.2d 1081, 1088 (9th Cir. 1989) (“copyright licenses are assumed to prohibit
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`any use not authorized”); see also slip op. at 7 n.5 (acknowledging this rule). For implied
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`license, the Fifth Circuit has instead shifted a substantive burden onto copyright owners
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`to “object” to other potentially infringing uses of their work when they deposit a physical
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`copy. Slip op. at 6 & 7 n.5; cf. 17 U.S.C. §202 (transfer of a copy “does not of itself convey
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`any rights in the copyrighted work embodied in the object”). Other courts have adhered to
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`the view that, as with express license, proving the scope of an implied license instead
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`turns on whether there was a “‘meeting of the minds’ between the parties to permit the
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`particular usage at issue.” Jose Luis Pelaez, Inc. v. McGraw-Hill Global Educ. Holdings,
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`LLC, 399 F. Supp. 3d 120, 141-42 (S.D.N.Y. 2019) (collecting authorities from the First,
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`Fourth, Fifth, and Seventh Circuits divided on the correct legal standard to apply).
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`11.
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`A 30-day extension to file a petition for a writ of certiorari is necessary so
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`that counsel can appropriately prepare the petition and appendix. The completion of this
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`process has been further complicated by lead counsel’s other, previously engaged matters,
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`including ongoing briefing deadlines and argument dates in Tercero v. Texas Southmost
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`4
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`
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`University District (5th Cir.); Jaffe v. City of West Lake Hills (Tex. Dist. Ct.); Murphey v.
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`Old Dollar Properties, LLC (Tex. Ct. App.); and Stross v. Centerra Homes (W.D.T.X.).
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`12. No prejudice would arise from granting this extension, and the requested
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`extension is unopposed.
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`Prayer
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`GSI respectfully requests a 30-day extension of time to file a petition for a writ of
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`certiorari, to and including Monday January 13, 2020.
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`Respectfully submitted,
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`/s/ Don Cruse
`
`Don Cruse
` Counsel of Record
`LAW OFFICE OF DON CRUSE
`1108 Lavaca St. #110-436
`Austin, Texas 78701
`(512) 853-9100
`don.cruse@texasappellate.com
`
`Counsel for Petitioner
`
`5
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