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SCANDINAVIAN SATELLITE SYSTEM v. PRIME TV LIMITED

May 16, 2001

SCANDINAVIAN SATELLITE SYSTEM, AS, PLAINTIFF,
v.
PRIME TV LIMITED,ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.

MEMORANDUM OPINION

INTRODUCTION

Before this Court is a case brought by plaintiff Scandinavian Satellite System AS ("SSS"), a Norwegian corporation that is controlled by Raja Nasir Hussain, a Pakistani citizen who resides in England. The defendants are Prime TV ("Prime"), a company organized under the laws of the United Kingdom, and two Pakistani individuals — Yusaf Baig Mirza, who controls Prime, and Abdul Jabbar, the chairman of Prime. Plaintiff sues these parties for copyright infringement under 17 U.S.C. § 106 and 602. At issue are the broadcast rights for television programs produced by Pakistan Television Corporation Limited ("PTV"), a government-owned enterprise based in Pakistan that produces news and entertainment programs ("PTV Programming").
While defendants have raised a host of legal issues, the Court need not address them, since it concludes that this is not a "civil action arising under an Act of Congress relating to . . . copyrights." 28 U.S.C. § 1338(a). Thus, there is no subject matter jurisdiction and the case must be dismissed.

FACTUAL BACKGROUND

The events, contracts, and parties that give rise to this action form a tangled web. While denominated as a copyright action, this case really involves three contracts signed by four interrelated foreign entities. As will become clear, plaintiff bases its action on two of the contracts, claiming that those agreements are valid, and it seeks to rescind the third contract as void on the grounds of duress. Plaintiff has not sued any of the signatories to the first two contracts, but instead has sued an entity that, prior to the signing of the third contract, was plaintiff's wholly-owned subsidiary. Moreover, all of the parties and all of the signatories to the contracts are foreign citizens, and all events relevant to both the formation and the alleged breach of these contracts occurred outside the United States. Nonetheless, by invoking the copyright laws, plaintiff has brought a claim that, on its face, may be cognizable in federal court.

Before the Court can evaluate the validity of plaintiff's copyright claim, it is necessary to more fully identify the cast of characters and the three contracts which are at the core of this action.

The Cast of Characters

A. The Corporate Entities

This dispute involves the rights to broadcast PTV Programming outside of Pakistan. PTV is an enterprise headquartered in Pakistan that produces news and entertainment programs. The government of Pakistan owns PTV. (Complaint ¶ 8.) PTV Programming is authored, produced, published, and first shown in Pakistan. It is neither first published nor simultaneously published in the United States. (Complaint ¶ 9.)
Plaintiff SSS is a Norwegian company. According to plaintiff, SSS holds an exclusive license to broadcast PTV Programming outside of Pakistan. Hussain, a citizen of Pakistan, is the president of SSS. (Complaint ¶ 14.)
Though not a party to the action, Sports Star International ("SSI") is a Pakistani company that is a central player in this drama. SSI also has an interest in the broadcasting rights to PTV Programming. In fact, defendants argue that SSI, rather than SSS, holds the exclusive rights to broadcast PTV Programming outside of Pakistan.
Defendant Prime is a British company that was a wholly-owned subsidiary of SSS prior to the events giving rise to this action. SSS states that it had intended for Prime, as its subsidiary, to broadcast PTV Programming outside of Pakistan. (Complaint ¶ 13.) However, as a result of the execution of a Joint Venture Agreement, the controlling interest in Prime was transferred from SSS to SSI.

B. The Individual Defendants

There are two individual defendants in this action, neither of whom has been served as of this time. Defendant Mirza is a citizen of Pakistan. According to plaintiff, Mirza has a variety of overlapping roles in these events. Plaintiff asserts that Mirza (1) is the managing director of PTV; (2) holds an interest in SSI; and (3) now controls the actions of Prime. (Complaint ¶¶ 3, 11, 14.)*fn1
Defendant Jabbar is also a citizen of Pakistan. Plaintiff contends that Jabbar is the chairman of Prime, and that he also controls the actions of Prime. It is unclear from the record whether Jabbar has an interest in either PTV or SSI.
II. The PTV Programming Agreements
The rights to broadcast PTV Programming rest on the interpretation of a series of three contracts. First, PTV granted SSI an exclusive license to broadcast PTV Programming outside of Pakistan in an agreement dated May 25, 1998 (the "SSI/PTV Agreement"). In consideration for these rights, SSI paid PTV a cash deposit of $25,000. (Decl. of M. Taher Memon ("Memon Decl."), Ex. 1, ¶ 8.) This contract includes a forum selection clause referring all disputes to arbitration in Pakistan.*fn2 The parties do not dispute the validity of this contract. However, SSS argues that it is the intended beneficiary of the SSI/PTV Agreement. SSS alleges that it structured and brought the idea for the contract to PTV, and that ...

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