Legality and/or morality of geoblocking

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#1475212 20-Jan-2016 11:26

jarledb:
sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Agreed..... But it would allow the whack-a mole to continue on an explicitly legal basis from NZ and other similarly minded jurisdictions.

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#1475215 20-Jan-2016 11:34

jarledb:

sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Would they? You can't contract out of a law. The back of all the region 1 DVDs I have say I'm not allowed to watch them here. But nobody can come after me even if they want to because the law says it's OK.

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#1475217 20-Jan-2016 11:39

Another interesting question is what happens with the TPPA. Here's my reading - there are five, maybe six reasons why the TPPA would outlaw it, at least. There could be others; I didn't read the entire chapter. I thought it was clear enough.

Article 18.60: Right of Distribution
Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit the making available to the public of the original and copies66 of their works, performances and phonograms through sale or other transfer of ownership.

So this says that it will never be possible for the government to outlaw exclusive rights deals (not that they would ever do that anyway, they're not that forward-looking).

3. (a) Each Party shall provide to performers and producers of phonograms the exclusive right to authorise or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means,70,71 and the making available to the public of those performances or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

Geo-blocking is one of the exclusive rights a performer or producer may choose to authorise or prohibit broadcasting. However:

Article 18.68: Technological Protection Measures (TPMs) (81)

(81) Nothing in this Agreement requires a Party to restrict the importation or domestic sale of a device that does not render effective a technological measure the only purpose of which is to control market segmentation for legitimate physical copies of a cinematographic film, and is not otherwise a violation of its law.

Geoblocking is a device whose sole purpose is to control market segmentation. On the other hand, geoblocking is in respect of streams, not physical copies, so exception (81) probably doesn't apply.

Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully 87 and for the purposes of commercial advantage or financial gain88 in any of the above activities.89

And therefore the TPPA could be twisted to make you criminally liable if the rights holders found a sufficiently persuasive argument as to how you gained financial gain by bypassing a geoblock. That's probably possible, because it could mean that instead of buying a $100 box set, you might stream a series for $15.

3. Each Party shall provide that a violation of a measure implementing this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights.90

You're liable even if you bypassed the geoblock to watch something you could have watched without the bypass because the bypass is an infringement on its own.

(a) each Party shall provide that any person that, without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate or conceal an infringement of the copyright or related right of authors, performers or producers of phonograms:
(i) knowingly96 removes or alters any RMI;

You are knowingly removing RMI (Rights Management Information).

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#1475243 20-Jan-2016 11:58

SaltyNZ:

jarledb:

sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Would they? You can't contract out of a law. The back of all the region 1 DVDs I have say I'm not allowed to watch them here. But nobody can come after me even if they want to because the law says it's OK.

Even if geo-unblocking was explicitly made legal, it doesn't follow that implementing geo-blocking is then illegal. I.e. it would be perfectly legal for you to watch US content from NZ, but it would be just as legal for Netflix to try to stop you.

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#1475250 20-Jan-2016 12:02

Paul1977:

SaltyNZ:

jarledb:

sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Would they? You can't contract out of a law. The back of all the region 1 DVDs I have say I'm not allowed to watch them here. But nobody can come after me even if they want to because the law says it's OK.

Even if geo-unblocking was explicitly made legal, it doesn't follow that implementing geo-blocking is then illegal. I.e. it would be perfectly legal for you to watch US content from NZ, but it would be just as legal for Netflix to try to stop you.

No, but that's not quite the right analogy. The region 1 DVD still tries to stop me watching it here. I have to have a DVD player that ignores regions. The rights holders can't come after me for breaking that region lock. So if geo-block bypassing was made explicitly legal, Netflix could still put a geo-block in place. They just wouldn't be able to sue me for successfully avoiding it.

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Paul1977

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#1475285 20-Jan-2016 12:08

SaltyNZ:

Paul1977:

SaltyNZ:

jarledb:

sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Would they? You can't contract out of a law. The back of all the region 1 DVDs I have say I'm not allowed to watch them here. But nobody can come after me even if they want to because the law says it's OK.

Even if geo-unblocking was explicitly made legal, it doesn't follow that implementing geo-blocking is then illegal. I.e. it would be perfectly legal for you to watch US content from NZ, but it would be just as legal for Netflix to try to stop you.

No, but that's not quite the right analogy. The region 1 DVD still tries to stop me watching it here. I have to have a DVD player that ignores regions. The rights holders can't come after me for breaking that region lock. So if geo-block bypassing was made explicitly legal, Netflix could still put a geo-block in place. They just wouldn't be able to sue me for successfully avoiding it.

Correct, but I thought you were questioning whether Netflix would be able to legally combat geo-unblocking if it were made explicitly legal.

EDIT: If by "combat" you mean sue the end user, then no they couldn't. If you mean make every attempt to prevent your geo-unblocking attempts, then yes they could.

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#1475300 20-Jan-2016 12:24

SaltyNZ:

jarledb:

sultanoswing:
Best way is to explicitly make geo-unblocking legal. Then the dinosaur content owners can stuck it.

Seems to me that Netflix & co still would be able to combat geo-unblocking, even if it was explicitly legal in NZ.

Would they? You can't contract out of a law. The back of all the region 1 DVDs I have say I'm not allowed to watch them here. But nobody can come after me even if they want to because the law says it's OK.

You can contract to anything you like. But you must still obey NZ law (if you're in NZ).

NF T&C say that Netherlands law is applicable. So, although you comply with NZ law, you have also agreed to comply with the T&C, as interpreted by Dutch law. So, I think NF *could* come after you if you have breached the T&C, via the Dutch courts.

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#1475302 20-Jan-2016 12:27

On the basis of past performance, I think content owners (not necessarily Netflix) will do everything they can to use the TPPA to get geo-unblocking made illegal in every country that is part of the agreement. If they manage that, it won't matter what New Zealand thinks. This won't stop geo-unblocking but it will criminalise those who use it.

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#1475321 20-Jan-2016 12:57

frankv:

You can contract to anything you like. But you must still obey NZ law (if you're in NZ).

NF T&C say that Netherlands law is applicable. So, although you comply with NZ law, you have also agreed to comply with the T&C, as interpreted by Dutch law. So, I think NF *could* come after you if you have breached the T&C, via the Dutch courts.

I don't think that's quite correct either. If I violate the Ts & Cs (as interpreted by Dutch law) then they can terminate my contract. But they cannot also turn around and accuse me of a copyright violation or some other criminal act, because a) I haven't broken a criminal law, and b) Netflix does not own any of the copyrights in question and therefore has no standing. Only a copyright holder could prosecute for copyright infringement, but if the law here said what I did wasn't a copyright infringement then that doesn't apply either.

Netflix's sole remedy is whatever is set out in the Ts & Cs, and I'd be surprised if there was anything in there above and beyond termination of the account.

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NonprayingMantis

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#1475336 20-Jan-2016 13:10

SaltyNZ:

frankv:

You can contract to anything you like. But you must still obey NZ law (if you're in NZ).

NF T&C say that Netherlands law is applicable. So, although you comply with NZ law, you have also agreed to comply with the T&C, as interpreted by Dutch law. So, I think NF *could* come after you if you have breached the T&C, via the Dutch courts.

I don't think that's quite correct either. If I violate the Ts & Cs (as interpreted by Dutch law) then they can terminate my contract. But they cannot also turn around and accuse me of a copyright violation or some other criminal act, because a) I haven't broken a criminal law, and b) Netflix does not own any of the copyrights in question and therefore has no standing. Only a copyright holder could prosecute for copyright infringement, but if the law here said what I did wasn't a copyright infringement then that doesn't apply either.

Netflix's sole remedy is whatever is set out in the Ts & Cs, and I'd be surprised if there was anything in there above and beyond termination of the account.

I believe content distributors are able to sue for copyright breaches, even when they don't own the original rights.

That's why Sky, Lightbox etc was able to sue the likes of Slingshot for Global mode.

(yes it didn't get to court, but if the defence of "you're not entitled to sue me" was legit then Slingshot etc could have just stuck two fingers up and said "see you in court"

(But even in this hypothetical scenario, I doubt Netflix are going to sue you, even if they could. It's not worth hassle and cost to sue individuals who are just watching Netflix themselves. They might terminate your subscription though. And whilst you could simply sign up again with a fresh email address, it's kinda annoying to lose all your history and watchlist.

SaltyNZ

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#1475349 20-Jan-2016 13:22

NonprayingMantis:

I believe content distributors are able to sue for copyright breaches, even when they don't own the original rights.

That's why Sky, Lightbox etc was able to sue the likes of Slingshot for Global mode.

(yes it didn't get to court, but if the defence of "you're not entitled to sue me" was legit then Slingshot etc could have just stuck two fingers up and said "see you in court"

(But even in this hypothetical scenario, I doubt Netflix are going to sue you, even if they could. It's not worth hassle and cost to sue individuals who are just watching Netflix themselves. They might terminate your subscription though. And whilst you could simply sign up again with a fresh email address, it's kinda annoying to lose all your history and watchlist.

That's possible, although the public never got to see exactly what they were actually suing over as it was never publicly revealed. And even if it was direct copyright infringement litigation on behalf, and there was a no-standing defense, the expense of mounting it could still have been deemed as a de-facto loss regardless of the eventual legal merits, or lack thereof. If it costs you your business to prove your business can't be shut down, then it's easier to just pack up right now. I believe that's what happened - the company providing the service at the back end still exists, and still does it. They just don't do it in New Zealand for New Zealand ISPs.

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#1475390 20-Jan-2016 13:49

Here's another way of looking at this. In my view geo-unblocking is the digital equivalent of physical services like YouShop. i.e. I can buy Breaking Bad directly from Netflix US instead of paying the NZ rights holder (Sky TV?) and in a similar way I can buy a pair of Levi's from Amazon US (delivered via YouShop) instead of Farmers.

Now, YouShop is run by NZ Post, which as far as I know is owned by the NZ Government. Therefore, the NZ Govt is directly supporting the bypassing of NZ importers for physical goods. It would seem reasonable then, that they have no objection to doing the same for digital goods. For them to object to digital but not physical bypassing, would be fairly hypocritical considering they are profiting from YouShop.

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#1475399 20-Jan-2016 14:06

Earbanean:

Here's another way of looking at this. In my view geo-unblocking is the digital equivalent of physical services like YouShop. i.e. I can buy Breaking Bad directly from Netflix US instead of paying the NZ rights holder (Sky TV?) and in a similar way I can buy a pair of Levi's from Amazon US (delivered via YouShop) instead of Farmers.

Now, YouShop is run by NZ Post, which as far as I know is owned by the NZ Government. Therefore, the NZ Govt is directly supporting the bypassing of NZ importers for physical goods. It would seem reasonable then, that they have no objection to doing the same for digital goods. For them to object to digital but not physical bypassing, would be fairly hypocritical considering they are profiting from YouShop.

Does Farmers have the rights to Levi's?

If they did then Amazon is in breach, and in all likelihood they would not ship to certain destinations. Even if they were in breach, Youshop isn't relevant that's just one of many costs in running a business. Shipping. Would you also blame blame SX Cable for MegaUploads copyriight file transfers?

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#1475402 20-Jan-2016 14:08

Earbanean:

Here's another way of looking at this. In my view geo-unblocking is the digital equivalent of physical services like YouShop. i.e. I can buy Breaking Bad directly from Netflix US instead of paying the NZ rights holder (Sky TV?) and in a similar way I can buy a pair of Levi's from Amazon US (delivered via YouShop) instead of Farmers.

Now, YouShop is run by NZ Post, which as far as I know is owned by the NZ Government. Therefore, the NZ Govt is directly supporting the bypassing of NZ importers for physical goods. It would seem reasonable then, that they have no objection to doing the same for digital goods. For them to object to digital but not physical bypassing, would be fairly hypocritical considering they are profiting from YouShop.

Because if there's one thing governments all over the world are known for, it is logic and consistency.

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#1475420 20-Jan-2016 14:21

tdgeek:

Does Farmers have the rights to Levi's?

If they did then Amazon is in breach, and in all likelihood they would not ship to certain destinations. Even if they were in breach, Youshop isn't relevant that's just one of many costs in running a business. Shipping. Would you also blame blame SX Cable for MegaUploads copyriight file transfers?

Farmers purchase the Levis they sell from the approved NZ distributor, who gets them under licence from Levis HQ. Purchasing goods from alternative channels than the approved distributor is explicitly legal in NZ, so there is no breach at this end if Amazon sell to Kiwis. If Amazon's agreements with Levis HQ prohibit that, then there's a breach at Amazon's end, but its still fine in NZ.

Amazon may choose not to ship Levis products to NZ, the most likely reason for them to turn down our money would be Levis HQ insisting on that as a condition of Amazon being allowed to sell Levis to Americans.

Many US retailers have a policy of not shipping to reshipping companies such as YouShop. If you have a friend or relative in the US, you can ship stuff to them and get them to ship it on to you.

If I find a container load of Levis for sale somewhere, perhaps the result of a bankrupt merchant, or a really good sale in another country, I can import that container to NZ and sell those Levis myself, in competition with the approved distributor. NZ law specifically allows this parallel importing of physical merchandise.

NZ law explicitly makes a difference between physical goods and digital goods, so using Levis as an example is all well and good, but doesn't compare apples with apples.

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