Global mode over ? Lets see.....

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67 posts

Master Geek

#1280393 10-Apr-2015 12:21

freitasm: The Copyright Act says the content is legitimate if it's legitimate in the country of origin ("Meaning of infringing copy"):

An object that a person imports or proposes to import into New Zealand is not an infringing copy under subsection (3)(b) if—

(a)it was made by or with the consent of the owner of the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made; or

(b)where no person owned the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made, any of the following applies:

(i)the copyright protection (or other equivalent intellectual property right protection) formerly afforded to the work in question in that country has expired:

(ii)the person otherwise entitled to be the owner of the copyright (or other equivalent intellectual property right) in the work in question in that country has failed to take some step legally available to them to secure the copyright (or other equivalent intellectual property right) in the work in that country:

(iii)the object is a copy in 3 dimensions of an artistic work that has been industrially applied in that country in the manner specified in section 75(4):

(iv)the object was made in that country by or with the consent of the owner of the copyright in the work in New Zealand.

Back to the physical world, if I am in the USA and buy a legal DVD that says "For use in the USA only, Region 2 players only" it's legal for me as a single person to bring it to New Zealand because the piece of work is legal where I am buying it. Even though it is "licensed" for use in the USA only the fact I am taking it out of the USA doesn't make it "illegal".

Similarly if I buy a book on Amazon that book was originally licensed so it's not an illegal copy. Again as a single person I can buy that book and have it sent to me ("import").

I am not breaking any laws for doing so. I am actually either flying back home on Air New Zealand or having the book shipped to me via FedEx.

Should either Air New Zealand or FedEx being cited for facilitating this legal act of parallel importing?

Why should Global Mode ISPs be bullied for facilitating a legal act of parallel importing of digital goods?

Now that's interesting. It really does sound like NZ law simply doesn't care - in the case of physical things at least. And I guess you could probably argue the intent of that section is to remove geographical restrictions and so streaming services would probably have been mentioned too if they had existed at the time. So NZ Copyright law effectively blocks geographical restrictions in copyright licenses.

If geographical restrictions in the ToS are also considered unenforcable here then Sky, etc, may very well be simply wasting their time (even more so than they already were).

I guess they could argue the geographical restrictions are a form of DRM. If so under what circumstances are you allowed to break such DRM?

zyo

513 posts

Ultimate Geek

#1280397 10-Apr-2015 12:27

davidrg:
zyo:
Exactly, there is no violation of copyright as the content is legit. Basically the exclusivity contract is between the content provider (studios) and local distributor (TVNZ, Sky etc etc), local ISPs like Callplus is under no obligation to abide to such contract. If anything the bullies (TVNZ/Sky) should go against Netflix as they are knowingly violating their own agreements with the studios by serving out of region contents to customers.

The content is only legit if Netflix has a license to distribute that content to people in New Zealand and they just haven't added it to their NZ library yet.

If Netflix doesn't have a license to send the content to you in NZ via their proprietary DRMd protocols then I'm certain its no more legal than me sending a copy of one of my blu-rays to you over bittorrent. In both cases the person sending the content (Me, Netflix) don't have a license to do it.

Assuming the rules for large companies doing things for profit are no more harsh than the rules for individual people doing things for personal use then surely if me sending a movie to you via Bittorrent without a license is Copyright Infringement ("piracy") then Netflix sending it without a license via their protocols would be Copyright Infringement too. If that's not the case then why can Netflix do this and not me? Why does Netflix get special license-ignoring privileges? Does Lightbox get those privileges too? Can they stream stuff they don't have a license for?

If Netflix doesn't have any special privileges then by violating the Netflix terms of service you're probably causing them to do something illegal.

Then there is the question of if the sender doesn't have a license to send the content, does the receiver have a license to receive it? If you download a movie from me via Bittorrent it seems fairly clear that you're committing copyright infringement. I can only assume streaming a movie from Netflix that Netflix doesn't have a license for would fall into the same basket.

"no more legal than me sending a copy of one of my blu-rays to you over bittorrent "

Global Mode is not making copies of genuine copyrighted work and re-distributing to someone who didn't pay for the work.
You are legally allowed to make and transmit digital copies of purchased content for personal use.

freitasm

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#1280405 10-Apr-2015 12:44

zyo: Global Mode is not making copies of genuine copyrighted work and re-distributing to someone who didn't pay for the work.
You are legally allowed to make and transmit digital copies of purchased content for personal use.

Not true.

You're only allowed to make digital copy (personal use) for audio recordings - not for movies or videos.

zyo

513 posts

Ultimate Geek

#1280406 10-Apr-2015 12:48

freitasm:
zyo: Global Mode is not making copies of genuine copyrighted work and re-distributing to someone who didn't pay for the work.
You are legally allowed to make and transmit digital copies of purchased content for personal use.

Not true.

You're only allowed to make digital copy (personal use) for audio recordings - not for movies or videos.

I stand corrected
https://www.consumer.org.nz/articles/copyright-law

StarBlazer

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#1280421 10-Apr-2015 13:01

Yabanize:
Rikkitic: Yeah and if I buy a vinyl record and let you play it we're both criminals bla bla bla. The law is broken and the lawyers are dancing on the head of a pin.

Edit: Sorry I meant this as a reply to the previous post + 1 but freitasm was too fast for me.

If you even let him listen to it you are too haha

From the Copyright Council
What is a Public Performance?
A public performance is the playing in public of music or a sound recording, or the exhibition of a music video in public (i.e. a non-domestic environment). Just because a performance is given for free, or the audience is small, or there is no admission fee, or the performance is confined to members of a club, or a limited area, it does not mean it is not a public performance.

Playing it to your friend does not appear to breach this. Playing music in public where others are able to listen however is. We should start fining those who walk around with their phone playing music from the speaker - it perhaps should apply to cars too, not that you can recognise the rumble they produce.

Procrastination eventually pays off.

freitasm

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#1280424 10-Apr-2015 13:03

We should fine people who travel in buses and trains while wearing headphones blasting horrible music we can hear even over the background noise.

jarledb

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#1280548 10-Apr-2015 15:19

Do they charge licensing fees for using wait music here in NZ? In Norway they looove doing that. Its public performance.. Same thing goes for music you play in your store, cafe etc.

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freitasm

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#1280549 10-Apr-2015 15:19

Yes, they do.

SepticSceptic

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#1280592 10-Apr-2015 16:06

jarledb: Do they charge licensing fees for using wait music here in NZ? In Norway they looove doing that. Its public performance.. Same thing goes for music you play in your store, cafe etc.

Yep, and some small bushinesses (panelbeaters?) have been pinged for playing the radio in their workshop, the workshop staff being deemed an audience ...

Any business found to be playing copyrighted material in public without the appropriate licence is breaking the law. Usually two licences are required: a Public Performance Licence from PPNZ and an APRA licence.

Publicity of the prosecution of a Palmerston North business in recent years raised the awareness of retailers to the need for licensing. The business was ordered to stop illegally playing music for which it did not have a Public Performance Licence and to pay costs and damages amounting to almost $3,500.00.

freitasm

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#1280638 10-Apr-2015 17:54

More commentary here:

First it was tax. Complaints that Netflix don’t pay enough. The dinosaurs howled and roared about how they were disadvantaged. But then someone pointed out that at least one of those dinosaur’s lines of business was based in Bermuda. We all know what Bermuda is famous for. This seemed to be the equivalent of rushing out of your house with a self-righteous attitude and discharging the shotgun into your foot.

The four now face a growing lash back as the perception is that they are taking away people’s basic right to choose and pay for what services they wish in a competitive market. They are making no noises about bettering their services, about creating unique content, about supporting New Zealand Film and Television makers, about selling that content to the world in the way that Netflix does (digital export), no, they are simply trying to muscle their way over the top of their competitors in order to ensure that their product is the only choice we have.

Imagine if booksellers did that. Imagine if they launched legal action to stop you having the ability to purchase overseas books, either in hard copy or digital format. Imagine if they managed to force you to only be able to buy books that were inside New Zealand from nominated retailers.

They would be laughed out of town.

What if they try and do it with Cloud services?

Worse, the attitude of the dinosaurs shows that they are not adapting to new business models and are fiercely, arrogantly, defending an old model that started to die out around 2000.

mdf

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#1280708 10-Apr-2015 19:09

freitasm: The Copyright Act says the content is legitimate if it's legitimate in the country of origin ("Meaning of infringing copy"):

An object that a person imports or proposes to import into New Zealand is not an infringing copy under subsection (3)(b) if—

(a)it was made by or with the consent of the owner of the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made; or

(b)where no person owned the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made, any of the following applies:

(i)the copyright protection (or other equivalent intellectual property right protection) formerly afforded to the work in question in that country has expired:

(ii)the person otherwise entitled to be the owner of the copyright (or other equivalent intellectual property right) in the work in question in that country has failed to take some step legally available to them to secure the copyright (or other equivalent intellectual property right) in the work in that country:

(iii)the object is a copy in 3 dimensions of an artistic work that has been industrially applied in that country in the manner specified in section 75(4):

(iv)the object was made in that country by or with the consent of the owner of the copyright in the work in New Zealand.

Back to the physical world, if I am in the USA and buy a legal DVD that says "For use in the USA only, Region 2 players only" it's legal for me as a single person to bring it to New Zealand because the piece of work is legal where I am buying it. Even though it is "licensed" for use in the USA only the fact I am taking it out of the USA doesn't make it "illegal".

Similarly if I buy a book on Amazon that book was originally licensed so it's not an illegal copy. Again as a single person I can buy that book and have it sent to me ("import").

I am not breaking any laws for doing so. I am actually either flying back home on Air New Zealand or having the book shipped to me via FedEx.

Should either Air New Zealand or FedEx being cited for facilitating this legal act of parallel importing?

Why should Global Mode ISPs be bullied for facilitating a legal act of parallel importing of digital goods?

The problem with section 12(5A) of the Copyright Act (freitasm quoted above) is that it is an exception to infringement only under subsection 3(b) (importing an infringing copy). You can still infringe copyright in other ways. So while this section addresses certain points, it is not a complete answer to the issue.

I've done a little bit of digging, and hesitate to come to any definitive conclusions, but in the United States at least the breach of a licence term can amount to being a breach of copyright (see Jacobsen v Katzer, or the wikipedia article about it). This clearly isn't definitive in New Zealand, but if it were adopted here (and that's still to be tested), then this would be a key plank of the the anti-globalmode alliance.

The argument for the anti-globalmode alliance would therefore run along the lines of "(1) it's a breach of copyright in the United States, (2) therefore the parallel importing protection in NZ law doesn't apply, (3) therefore copyright is also breached in New Zealand". The New Zealand licence holders could therefore take action against end users (section 123). I'm not sure what action would arise against Bypass Networks and the ISPs, but potentially sections 37(1) and (2).

I'm not saying that this is necessarily what the outcome ought to be, just outlining what the case for the prosecution (as it were) may be.

Disclaimer: no inside knowledge or even particular copyright/IP expertise.

freitasm

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#1280736 10-Apr-2015 19:45

But then rights holders would have to bring these cases forward, not the content providers, since they're not rights holders, only licensed to distribute.

lchiu7

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#1280790 10-Apr-2015 21:38

This is a very complex legal issue and I don't think any of us who are not lawyers can really make any headway of it. Common sense doesn't always prevail in these circumstances.

BF took on the case presumably because they felt there was some merit to the argument about copyright infringement (or they just wanted their fat fees!).

CallPlus is calling their bluff so on 15 May we will find out who blinks first. It's going to be probably BF versus some other double-barreled name law firm and we know who always wins the end!

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mdf

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#1280803 10-Apr-2015 21:40

The crafty drafters of the legislation are too wily for that. Licensees have the same rights as the copyright owner - ss 123 and 124. So it seems that if Lightbox or Quckflix or whoever bought the rights for NZ, they can sue for copyright breach even if the breach may have occurred elsewhere.

BigGuy

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Master Geek

#1280908 11-Apr-2015 10:05

Even more commentary here - Consumer's take on the discussion.

Consumers have seen what is available overseas and know what is possible. They know you can get high-definition content across a range of devices for a decent price. For example, Sky’s Neon service offers a small selection of TV shows and older movies at low quality, only on a few devices (including no support for any Android device), and charges more than nearly all of the overseas services (and its local competitors).

When you look at it like that, it’s very hard to see this action from the plaintiffs as anything but protectionism, herding consumers back into old models.

I added the bold bits to highlight a big portion of the issue (for me).

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