App. 1
`
`Geophysical Serv. v. TGS-NOPEC Geophysical Co.
`United States Court of Appeals for the Fifth Circuit
`September 13, 2019, Filed
`No. 18-20493
`Counsel: For Geophysical Service, Incorporated,
`Plaintiff
`- Appellant: Joel Benjamin Rothman,
`SRipLaw, P.L.L.C., Boca Raton, FL; Brent Taylor Cald-
`well, Matthew J. M. Prebeg, Ph. D., Prebeg, Faucett &
`Abbott, P.L.L.C., Houston, TX; Don Cruse, Law Office
`of Don Cruse, Austin, TX.
`
`For TGS-Nopec Geophysical Company, Defendant - Ap-
`pellee: Melanie B. Rother, Peter C. Tipps, Norton Rose
`Fulbright US, L.L.P., Houston, TX.
`
`Judges: Before CLEMENT, HAYNES, and WILLETT,
`Circuit Judges.
`
`
`Opinion
`
`PER CURIAM:*
`
`Geophysical Service, Incorporated (“Geophysi-
`
`cal”), a Canadian company that collects, prepares, and
`licenses offshore seismic data, appeals the grant of
`summary judgment against it on its copyright in-
`fringement claim. Because we agree with the district
`
`
`* Pursuant to 5TH CIR. R. 47.5, the court has determined
`
`that this opinion should not be published and is not precedent ex-
`cept under the limited circumstances set forth in 5TH CIR. R.
`47.5.4.
`
`
`
`Geophysical Serv. v. TGS-NOPEC Geophysical Co.
`United States Court of Appeals for the Fifth Circuit
`September 13, 2019, Filed
`No. 18-20493
`Counsel: For Geophysical Service, Incorporated,
`Plaintiff
`- Appellant: Joel Benjamin Rothman,
`SRipLaw, P.L.L.C., Boca Raton, FL; Brent Taylor Cald-
`well, Matthew J. M. Prebeg, Ph. D., Prebeg, Faucett &
`Abbott, P.L.L.C., Houston, TX; Don Cruse, Law Office
`of Don Cruse, Austin, TX.
`
`For TGS-Nopec Geophysical Company, Defendant - Ap-
`pellee: Melanie B. Rother, Peter C. Tipps, Norton Rose
`Fulbright US, L.L.P., Houston, TX.
`
`Judges: Before CLEMENT, HAYNES, and WILLETT,
`Circuit Judges.
`
`
`Opinion
`
`PER CURIAM:*
`
`Geophysical Service, Incorporated (“Geophysi-
`
`cal”), a Canadian company that collects, prepares, and
`licenses offshore seismic data, appeals the grant of
`summary judgment against it on its copyright in-
`fringement claim. Because we agree with the district
`
`
`* Pursuant to 5TH CIR. R. 47.5, the court has determined
`
`that this opinion should not be published and is not precedent ex-
`cept under the limited circumstances set forth in 5TH CIR. R.
`47.5.4.
`
`
`
`App. 2
`
`court that Geophysical granted non-party the Canada-
`Newfoundland and Labrador Offshore Petroleum
`Board (the “Board”) an implied license to copy and dis-
`tribute its speculative seismic data, we AFFIRM the
`judgment without reaching the parties’ other argu-
`ments.
`
`
`I. Background
`
`Canada regulates the use of seismic surveys to ex-
`plore 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 require-
`ments and lengthened the confidentiality period to five
`years.
`
`In March 1982, Geophysical submitted a permit
`
`application (the “Offshore Program Notice”) to the Ca-
`nadian 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,
`
`
`1 The application was actually submitted by Geophysical’s prede-
`cessor-in-interest, a Delaware corporation also called “Geophysi-
`cal 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
`
`
`
`
`App. 3
`
`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.” Off-
`shore Exploration explains the requirement that
`offshore surveyors submit seismic data to the govern-
`ment and provides that 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 sur-
`veys whose confidentiality period had already expired.
`Following the release of the report, Geophysical sub-
`mitted 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 geolog-
`ical data products and services, requested copies of the
`GSI Works from the Board (which had since replaced
`the Administration as the relevant Canadian regula-
`tory body). The Board sent a copy to TGS in Texas.
`Fifteen years later, Geophysical sued TGS for copy-
`right infringement, claiming direct infringement, con-
`tributory infringement, and unlawful removal of
`
`affect the analysis, we refer to both the Canadian corporation and
`its Delaware predecessor-in-interest as “Geophysical.”
`
`
`
`App. 4
`
`copyright management information. The district court
`granted TGS’s motion to dismiss in full, and Geophys-
`ical appealed. A different panel of this court affirmed
`the district court in part, but reversed and remanded
`Geophysical’s direct infringement claim based on un-
`lawful 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 confiden-
`tiality period expired. The district court granted TGS
`summary judgment on the implied-license and ex-
`press-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 argu-
`ments.
`
` 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
`
`
`2 The court’s opinion in this prior appeal discusses the fac-
`
`tual and regulatory background in more detail.
`
`
`
`App. 5
`
`contention that a defendant possesses a license author-
`izing 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 copies . . . under section
`106. . . .”). TGS does not dispute that Geophysical
`holds a valid copyright in the GSI Works. Thus, the rel-
`evant 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.
`
`
`
`App. 6
`
` We determine whether an implied license exists
`based on “the totality of the parties’ conduct.” Luli-
`rama, 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”). “Con-
`sent for an implied license may take the form of per-
`mission 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 doc-
`umentation furnished . . . in respect of geological or ge-
`ophysical 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 Re-
`ports,” it notes that “[g]eological and geophysical re-
`ports including seismic sections and maps may be
`
`3 We note that Geophysical in fact granted the Administra-
`
`tion, rather than the Board, an implied license, since the Board
`was not established until after Geophysical created and submit-
`ted 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 con-
`clude 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).
`
`
`
`App. 7
`
`purchased after expiry of the confidential period.” Fi-
`nally, the 1983 report listing geological data released
`in accordance with the 1982 Canada Oil and 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 Admin-
`istration was copying data after the confidentiality pe-
`riod 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 re-
`leasing 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 “specu-
`lative” seismic data; it argues that summary judgment
`was improper because of this factual dispute. But Ge-
`ophysical’s evidence creates no genuine issues of mate-
`rial 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 copy-
`ing of the Seismic Works for other parties.” The presi-
`dent also notes, however, that “[o]ver time, . . .
`
`
`
`App. 8
`
`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 specula-
`tive data available for copying-including Geophysi-
`cal’s.4
`
`Geophysical also points to an affidavit from its
`
`chief operating officer, who states that he understood
`in 1993 and 1994 that Geophysical retained all intel-
`lectual 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 favora-
`
`ble 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
`
`
`
`
`
`
`4 Geophysical’s reliance on a statement about speculative
`
`data in a Canadian court opinion is similarly unavailing. Geo-
`physical has not even attempted to explain how a judge’s opinion
`in that case could be “presented in a form that would be admissi-
`ble in evidence” in this one. Fed. R. Civ. P. 56(c)(2).
`
`
`
`App. 9
`
`material fact issues exist.5 Therefore, we AFFIRM the
`district court’s judgment.
`
`
`
`
`
`
`5 Geophysical also argues that even if there is an implied li-
`
`cense, it does not cover exporting the GSI Works to the United
`States. Other circuits have concluded that the parties’ conduct re-
`veals 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 indi-
`cates the Board distributed works only within Canada, and Geo-
`physical fails to point to any evidence that it intended to so limit
`the implied license. To the contrary, the majority of offshore seis-
`mic 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 recipi-
`ents. Thus, we reject this argument.
`
`
`
`
`
`App. 10
`
`Geophysical Servs. v.
`TGS-NOPEC Geophysical Servs.
`United States District Court for the
`Southern District of Texas, Houston Division
`June 19, 2018, Decided; June 19, 2018, Filed
`CIVIL ACTION NO. 14-1368
`Counsel: For Geophysical Service Incorporated, Plain-
`tiff: Joel B Rothman, LEAD ATTORNEY, Schneider
`Rothman, Boca Raton, FL USA; Matthew J M Prebeg,
`LEAD ATTORNEY, Prebeg Faucett Abbott PLLC, Hou-
`ston, TX USA; Aaron M. Panner, Kellogg Hansen et al,
`Washington, DC USA; Brent Taylor Caldwell, Prebeg
`Faucett & Abbott, PLLC, Houston, TX USA; Collin
`Randall White, Kellog Hansen et al, Washington, DC
`USA.
`
`For TGS-Nopec Geophysical Company, Defendant: Mela-
`nie B Rother, Peter Conger Tipps, LEAD ATTORNEYS,
`Norton Rose Fulbright US LLP, Houston, TX USA.
`
`Judges: Lee H. Rosenthal, Chief United States Dis-
`trict Judge.
`
`Opinion by: Lee H. Rosenthal
`
`
`Opinion
`MEMORANDUM AND OPINION
`
`The plaintiff, Geophysical Services Incorporated,
`brought this copyright suit against the defendant,
`TGS-NOPEC Geophysical Services. (Docket Entry No.
`1). TGS moved for summary judgment, Geophysical
`
`
`
`App. 11
`
`responded, and TGS replied. (Docket Entry Nos. 96, 98,
`99). The parties appeared at a hearing on July 15, 2018
`and presented oral argument on their positions.
`
`Based on the law, the record, and the parties’ ar-
`
`guments, the summary judgment motion is granted.
`Final judgment is entered separately. The reasons for
`this ruling are explained below.
`
`
`I. Background
`Geophysical Services Incorporated is a Canadian
`
`company that collects seismic data by bouncing sound
`waves off the ocean floor, recording the information
`and processing, transcribing, and storing the infor-
`mation as seismic lines.1 Geophysical licenses the seis-
`mic data to oil and gas companies for use in oil, gas,
`and other hydrocarbon exploration. Geophysical as-
`serts a copyright interest in the seismic data under
`United States law.
`
`In 1999, TGS, a Houston company, requested cop-
`
`ies of seismic data that Geophysical had submitted to
`a Canadian agency in 1982 and 1983, the Canada Oil
`and Gas Lands Administration, pursuant to Canadian
`laws and regulations. The Administration’s successor,
`the Canada-Newfoundland and Labrador Offshore Pe-
`troleum Board, made copies and sent them to TGS
`at its Houston address. TGS performed seismic sur-
`veys at several of the same locations Geophysical had
`
`
`1 Additional background facts are provided in the court’s ear-
`
`lier Memorandum and Opinion (Docket Entry No. 86 at 1-3).
`
`
`
`App. 12
`
`surveyed in 1982. TGS licensed the seismic data it col-
`lected to oil and gas companies. Geophysical discov-
`ered TGS’s actions in 2013 and sued in May 2014.
`
`
`II. Procedural History
`A. The First Motion to Dismiss
`
`Geophysical’s original complaint alleged that TGS
`directly and contributorily infringed Geophysical’s copy-
`rights in the 1982 seismic data by requesting copies
`from the Board, making the copies it received from the
`Board available to third parties, creating derivative
`works by surveying the locations disclosed in the Geo-
`physical seismic lines to collect its own seismic data,
`which it licensed to third parties, and licensing and
`distributing copies of these derivative works without
`including Geophysical’s copyright-management infor-
`mation. (Docket Entry No. 1).
`
`TGS moved to dismiss, arguing that Geophysical’s
`
`complaint failed to state a claim and that any claim
`was barred by the act-of-state doctrine and by interna-
`tional comity. (Docket Entry No. 10). After briefing and
`argument, the court granted TGS’s motion to dismiss.
`(Docket Entry No. 28). The court vacated its dismissal
`because the opinion relied on grounds that the parties
`had not expressly raised. (Docket Entry No. 43). The
`court issued an amended memorandum and opinion
`and order that again dismissed Geophysical’s com-
`plaint. Id.
`
`
`
`
`
`App. 13
`
`B. The Interlocutory Appeal
`
`Geophysical filed an interlocutory appeal challeng-
`ing the dismissals of the unauthorized-importation ba-
`sis of its direct infringement claim and the dismissal
`of the contributory infringement claim. Geophysical
`Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d
`785, 792 (5th Cir. 2017). The Fifth Circuit affirmed the
`dismissal of Geophysical’s contributory infringement
`claim on extraterritoriality grounds, but reversed the
`dismissal of the unauthorized-importation component
`of Geophysical’s direct infringement claim. Id. at 799-
`800. The Fifth Circuit directed this court to decide
`on remand which law governs the determination of
`whether the copies TGS imported were “lawfully made”
`under 17 U.S.C. § 109, and then to apply that law to
`the record in this case. Id.
`
`
`C. The Second Motion to Dismiss
`
`Following the Fifth Circuit’s remand, TGS filed a
`renewed motion to dismiss, Geophysical responded,
`and TGS replied. (Docket Entry Nos. 62, 72, 74). After
`the court heard oral argument, (Docket Entry No. 79),
`TGS filed a supplemental reply, Geophysical filed a
`supplemental response, and TGS filed a second supple-
`mental reply. (Docket Entry Nos. 81, 84, 85).
`
`On November 21, 201, this court issued a memo-
`
`randum and order denying TGS’s motion to dismiss.
`(Docket Entry No. 86). First, this court found that a
`copy is “lawfully made under this title” if the copy is
`lawfully made in the United States in compliance with
`
`
`
`App. 14
`
`Title 17, or in a foreign country in a manner that would
`comply with Title 17 if United States copyright law
`applied. Id. at 17; 17 U.S.C. § 602(a)(1). This court de-
`clined to dismiss on the basis of an implied license, be-
`cause the record was insufficient to find a license as a
`matter of law. Id. at 26. The court stated:
`
`TGS argues that Geophysical’s complaint al-
`legations establish an intent to convey an im-
`plied license because Geophysical was aware
`of and complied with Canada’s licensing re-
`quirement to submit the seismic data and
`agree to a limited confidentiality period. TGS
`asserts that the Canadian regulatory regime
`has, at the relevant times, provided that the
`submitted data would be disclosed on request
`after a period of confidentiality, and that Geo-
`physical voluntarily submitted its seismic data
`to the Board knowing that it could be dis-
`closed when this period expired.
`
`TGS is correct that the complaint alleges Geo-
`physical’s participation in this regulatory li-
`censing scheme. Geophysical alleges that it
`“was required to, and did, submit to the
`[Board] a copy of [its works].” (Docket Entry
`No. 1, ¶ 29). But the parties dispute whether
`this amounted to an implied license and, if
`so, the parameters of the license that re-
`sulted. These disputes cannot be resolved on
`the present record.
`
`One dispute is whether Geophysical intended
`to grant the Board an implied license that
`extended to copying and distribution. Geo-
`physical alleges that the Board “was never
`
`
`
`App. 15
`
`authorized to copy or distribute [Geophysi-
`cal’s works], or make derivative works from
`[its works].” Id. at ¶ 30. As this court previ-
`ously noted, “[n]either the Act nor the Regula-
`tions contain language limiting the Petroleum
`Board’s authority to copy and distribute the
`seismic line and other data it requires survey-
`ors to submit.” (Docket Entry No. 28, at 15).
`Instead, the Canadian regulations use broad
`language that gives the Board “extensive con-
`trol over the data, including the right to copy
`and distribute it after the confidentiality pe-
`riod ends.” Id. But even assuming that the
`Board had the authority to copy and distrib-
`ute the seismic data it required, the question
`of Geophysical’s intent turns on the infor-
`mation and circumstances available to it at
`the relevant time. Would a company in Geo-
`physical’s position in 1982 and 1983 reasona-
`bly understand that the Canadian regulations
`permitting the Board to disclose the seismic
`data after the confidentiality period ended
`could result in the copying and distribution of
`that data to any requesting party? Did the
`Board have discretion to decide whether to
`copy and send the data to those requesting it,
`as Geophysical argues? (Docket Entry No. 72,
`at 25; Docket Entry No. 84, at 4). If so, does
`the Board’s discretion affect whether Geo-
`physical intended to grant an implied license
`that included copying and distribution? And if
`Geophysical granted an implied license, should
`Geophysical have reasonably expected the li-
`cense to extend to importation of copies of its
`works into the United States?
`
`
`
`App. 16
`
`These questions—and there may be more—
`cannot be answered on the present record.
`The questions are important to determine
`whether Geophysical’s participation in the
`Canadian regulatory regime shows that it
`granted the Board an implied license to copy
`and distribute its seismic data and import it
`into the United States. See Geophysical, 850
`F.3d at 799 (the creation of an implied license
`is a fact question). On the present record,
`TGS’s motion to dismiss on the implied-
`license ground must be denied.
`
`Id. at 25-27.
`
`On December 1, the parties were given a deadline
`
`to complete discovery limited to the implied-license is-
`sue. (Docket Entry Nos. 88, 89). After, TGS moved for
`summary judgment, Geophysical responded, and TGS
`replied. (Docket Entry Nos. 96, 98, 99).
`
`
`III. Timeline of Important Events
`
`The following timeline describes the Canadian
`regulatory regime and the actions of Geophysical and
`its predecessors as to the seismic data at issue under
`that regime:
`• 1953: The Territorial Regulations of 1953
`establishes a Canadian regime governing the
`submission and disclosure of geophysical data.
`(Docket Entry No. 81 at 3); Geophysical Serv.,
`Inc. v. Encana Corp. et al., 2016 ABQB 230,
`¶ 145 (Ct. Queen’s Bench of Alberta 2016).
`
`
`
`App. 17
`
`• 1960: The Canada Oil and Gas Regulations
`are enacted under the Territorial Lands Act
`and the Public Lands Grants Act. (Docket En-
`try No. 81 at 3); RSC 1952, c. 363; RSC 1952,
`c. 224. The regulations require offshore seismic
`surveyors to obtain government permission
`before beginning seismic surveying opera-
`tions and to submit the resulting seismic data
`to the government. SOR 60-182, §§ 5(1), 29
`(1960). The regulations provided for the “re-
`lease” of the data after a one-year confidenti-
`ality period. SOR 60-182, § 108.
`• 1961: The Canada Oil and Gas Land Regu-
`lations are amended to clarify the contents of
`the report that was required to be submitted
`by geophysical companies and to lengthen the
`confidentiality period. (Docket Entry No. 81
`at 5); SOR 61-253, §§ 28, 54(2), 54(4)(a)-(c),
`107(5)(a)(i) (1961).
`• 1978: The Canada Oil and Gas Land Regu-
`lations are amended again, but no substantive
`changes are made. (Docket Entry No. 81 at 7);
`CRC 1518 (1978).
`• April 1979: The Department of Energy,
`Mines and Resources’ Resource Management
`Branch released the eighth issue of “Offshore
`Exploration,” which contains information and
`procedures for offshore operators. (Docket En-
`try No. 96, Ex. 7). Offshore Exploration pro-
`vides for the release of “[r]eports of geological
`and geophysical surveys,” including “seismic
`sections and maps.” Id. at 61-62. “Copies” of
`“seismic sections and maps may be purchased
`
`
`
`App. 18
`
`after expiry of the confidential period.” Id. at
`62.
`• December 1981: The Canadian Parliament
`passed the Canada Oil and Gas Act, to become
`effective in March 1982. (Docket Entry No. 81
`at 8); Canada Oil and Gas Act, SC 1980-81-82-
`83 (1982). Under the Oil and Gas Act, the
`1978 Oil and Gas Regulations remained in ef-
`fect to the extent they were consistent with
`the Oil and Gas Act. (Docket Entry No. 81 at
`8); Canada Oil and Gas Act, SC 1980-81-82-
`83, c. 81, § 62 (1982). “The Oil and Gas Act did
`not contain a data submission requirement,”
`but it does include a disclosure provision.
`(Docket Entry No. 81 at 8); Canada Oil and
`Gas Act, SC 1980-81-82-83, c. 81, § 50 (1982).
`• January 1982: The Canada Oil and Gas
`Lands Administration was established, suc-
`ceeding the Department of Energy, Mines and
`Resources and the Department of Indian and
`Northern Affairs Canada. (Docket Entry No.
`96, Ex. 3 at ¶¶ 6-7). The Administration’s
`Land Management Branch was “responsible
`for the negotiation, execution, and admin-
`istration of exploration and production rights
`on all federal offshore and Northern lands.”
`Id. at ¶ 6. The Administration’s Resource Eval-
`uation Branch was responsible for “the regu-
`latory regime governing the submission and
`disclosure of technical data such as seismic
`lines.” Id. at ¶ 7.
`• March 24, 1982: Delaware GSI submitted
`a permit application seeking permission to
`
`
`
`App. 19
`
`conduct the survey that resulted in the crea-
`tion of the seismic data at issue. (Docket En-
`try No. 96, Ex. 12). The application contained
`an Offshore Program Notice signed by a Del-
`aware GSI official, but not yet approved by the
`Administration. Id. The notice states: “The re-
`quirements and services of the Federal agen-
`cies concerned are outlined in the publication
`“Offshore Exploration.” Id.
`• May 4, 1982: The Administration approved
`Delaware GSI’s permit application. (Docket
`Entry No. 96, Ex. 6). The returned Offshore
`Program Notice contains the same reference
`to “Offshore Exploration.” Id.
`• November 1982: The Administration issued
`“Geophysical Surveys on Canada Lands: Guide-
`lines for Approvals and Reports.” (Docket Entry
`No. 96, Ex. 8). The “Guidelines for Approvals
`and Reports” expressly refer to “Offshore Ex-
`ploration” as a “recommended reference pub-
`lication” that “outline[d] the responsibilities
`and requirements of federal departments
`and agencies concerned with the offshore,”
`and provided the list of “released geophysical/
`geological reports to April 1979.” Id. at ¶ 1.
`• November 26, 1982: According to Geophys-
`ical’s records, the first submission of the seismic
`data at issue is made to the Administration.
`(Docket Entry No. 96, Ex. 11 at 4, Ex. 14).
`• January 1983: The Administration issued
`“Released Geophysical and Geological Re-
`ports—Canada Lands,” pre-dating at least
`four submissions of the seismic data. (Docket
`
`
`
`App. 20
`
`Entry No. 96, Ex. 11 at 4, Ex. 15). The “Re-
`ports” confirmed that released seismic lines
`would be “reproduce[ed]” and “duplicat[ed]” by
`a commercial firm, and identified 698 specu-
`lative and non-speculative geophysical pro-
`grams that had already been released for
`reproduction and duplication. (Docket Entry
`No. 96, Ex. 15 at 5).
`• March 8, 1983: Geophysical submitted prints
`of the seismic data at issue. (Docket Entry No.
`96, Ex. 11 at 4, Ex. 16).
`• March 21, 1983: Geophysical submitted prints
`of all Newfoundland data it shot and pro-
`cessed in 1982. (Docket Entry No. 96, Ex. 11
`at 4, Ex. 17).
`• April 6, 1983: Geophysical submits addi-
`tional prints of the seismic data at issue.
`(Docket Entry No. 96, Ex. 11 at 4, Ex. 18).
`• November 3, 1983: Geophysical submits ad-
`ditional prints of the seismic data at issue.
`(Docket Entry No. 96, Ex. 11 at 4, Ex. 18).
`• March 25, 1987: The Canada-Newfound-
`land Atlantic Accord Implement Act states
`that any licenses granted to the Administra-
`tion transfer to the Canada-Newfoundland
`and Labrador Offshore Petroleum Board by
`operation of law. Canada-Newfoundland At-
`lantic Accord Implementation Act, S.C. 1987,
`c. 3 at § 205.
`• November 8, 1987: The seismic data at is-
`sue loses its confidentiality status. (Docket
`
`
`
`App. 21
`
`Entry No. 96, Ex. 9 at 8-9, Ex. 11 at 3, Ex. 15
`at 1).
`• April 1999: TGS receives copies of the seis-
`mic data. (Docket Entry No. 1 at ¶ 35).
`
`This timeline provides the framework for deciding the
`summary judgment motion.
`
`
`IV. The Legal Standards
`A. Summary Judgment
`
`“Summary judgment is required when ‘the movant
`shows that there is no genuine dispute as to any mate-
`rial fact and the movant is entitled to judgment as a
`matter of law.’ ” Trent v. Wade, 776 F.3d 368, 376 (5th
`Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). “A genuine dis-
`pute of material fact exists when the ‘evidence is such
`that a reasonable jury could return a verdict for the
`nonmoving party.’ ” Nola Spice Designs, LLC v. Haydel
`Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting
`Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct.
`2505, 91 L. Ed. 2d 202 (1986)). “The moving party
`‘bears the initial responsibility of informing the dis-
`trict court of the basis for its motion, and identifying
`those portions of [the record] which it believes demon-
`strate the absence of a genuine issue of material fact.’ ”
`Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
`(5th Cir. 2014)); see also Celotex Corp. v. Catrett, 477
`U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
`
`If the burden of proof at trial lies with the nonmov-
`
`ing party, the movant may satisfy its initial burden by
`
`
`
`App. 22
`
`showing an absence of evidence to support the non-
`moving party’s case. Fret v. Melton Truck Lines, Inc.,
`706 F. App’x 824, 827-28 (5th Cir. 2017). While the
`party moving for summary judgment must demon-
`strate the absence of a genuine issue of material fact,
`it does not need to negate the elements of the non-
`movant’s case. Coastal Agric. Supply, Inc. v. JP Morgan
`Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014)
`(citing Boudreaux v. Swift Transp. Co., 402 F.3d 536,
`540 (5th Cir. 2005)). A fact is material if “its resolution
`could affect the outcome of the actions.” Aly v. City
`of Lake Jackson, 605 F. App’x 260, 262 (5th Cir. 2015)
`(citing Burrell v. Dr. Pepper/Seven UP Bottling Grp.,
`Inc., 482 F.3d 408, 411 (5th Cir. 2007)). “If the moving
`party fails to meet [its] initial burden, the motion [for
`summary judgment] must be denied, regardless of the
`nonmovant’s response.” Pioneer Exploration, LLC v.
`Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014).
`
`“When the moving party has met its Rule 56(c)
`
`burden, the nonmoving party cannot survive a sum-
`mary judgment motion by resting on the mere allega-
`tions of its pleadings.” Bailey v. E. Baton Rouge Parish
`Prison, 663 F. App’x 328, 331 (5th Cir. 2016) (quoting
`Duffie v. United States, 600 F.3d 362, 371 (5th Cir.
`2010)). The nonmovant must identify specific evidence
`in the record and articulate how that evidence sup-
`ports that party’s claim. Willis v. Cleco Corp., 749 F.3d
`314, 317 (5th Cir. 2014). “This burden will not be satis-
`fied by ‘some metaphysical doubt as to the material
`facts, by conclusory allegations, by unsubstantiated as-
`sertions, or by only a scintilla of evidence.’ ” Jurach v.
`
`
`
`App. 23
`
`Safety Vision, LLC, 642 F. App’x 313, 317 (5th Cir.
`2016) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
`536, 540 (5th Cir. 2005)). In deciding a summary judgment
`motion, the court draws all reasonable inferences in
`the light most favorable to t
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