Global mode over ? Lets see.....

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#1287404 19-Apr-2015 19:47

Hark ye back my children and I will tell ye a tale of the wonders of the ancients - "video cassette tapes" (and betamax at that) and "Grokster".

To the best of my knowledge, it's not been considered expressly in New Zealand, but there are two leading US cases on copyright infringement by a technology provider.

Sony v Universal Studios found by a very narrow margin that it was okay to distribute devices that could be used for copyright infringement, because VCRs were also capable of substantial non-infringing uses.

MGM v Grokster found that the decision in Sony was still correct, but distributing a a device that might otherwise be okay while promoting it as a way to infringe copyright (as shown by express statements or other affirmative actions) makes the distributor liable for the resulting acts of infringement by third parties.

If I had to guess, I would say that the New Zealand courts would find a similar outcome.

So for things like BitTorrent and VPNs, which unambiguously have substantial non-infringing uses are okay. But if you distribute a BitTorrent client with a statement to the effect of "The best way to get the latest Hollywood movies for free" you're asking for trouble.

It's not clear whether Global Mode and breaching licence terms and conditions is actually a breach of copyright or not (see earlier posts in this thread). But if it is a breach of copyright, then I think CallPlus and Bypass are stuffed. (1) I'm not sure that it actually has any kind of non-infringing purpose, let alone a substantial one. And (2) the ways it's been promoted is pretty clearly encouraging infringement.

I'm not sure what happens behind the scenes with Global Mode, but others have suggested that Bypass actually curates the list of websites that you can access using Global Mode. It could also run afoul of A&M v Napster, which found that if a person (1) had knowledge it's users were infringing copyright and (2) "supplied material" to support that infringement (i.e. actively did something) then that was a "contributory" breach of copyright.

Again, if there is a breach of copyright (not settled etc.) then they're kind of stuffed under this one too.

NonprayingMantis

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#1287622 20-Apr-2015 10:44

interesting viewpoint MDF - pretty much what I have been saying too. (but with actual legal stuff to back it up :P )

In today's NBR there is another opinion from an actual IP lawyer (not just some random guy on twitter who is blindly repeating "it's parallel importing!")

It's pretty lengthy and goes into a lot of detail about various angles, like whether it is copyright infringement, whether ISPs can be liable, how parallel importing can be different from streaming, and whether Sky etc can sue for copyright breach.

Obviously IANAL so can't really critique his opinion, but it does seem to tie into what MDF says above, and the part about ISPs being liable ties into my previous arguments. (be interested to hear your view on this MDF - you are a lawyer, right? (but not an IP lawyer)

Read the summary written by NBR, but also make sure to read the full interview reproduced below for extra context.

http://www.nbr.co.nz/opinion/case-against-global-mode-neutral-analysis

dukester

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#1287634 20-Apr-2015 11:01

http://www.nbr.co.nz/opinion/case-against-global-mode-neutral-analysis

Would have liked to read this article, but dont feel inclined to subscribe to NBR to read it.

NonprayingMantis

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#1287635 20-Apr-2015 11:05

dukester:

http://www.nbr.co.nz/opinion/case-against-global-mode-neutral-analysis

Would have liked to read this article, but dont feel inclined to subscribe to NBR to read it.

weird. It wasn't paid just now when I went to it, but now it is.

they must have just moved it across to 'paid'

I've seen them do that before when stories start getting lots of traffic.

ETA: The gist of it was, he reckons there is a case to be answered. He's not certain (but when have you ever seen a lawyer be certain about anything - ha!) but makes pretty convincing arguments for the following:

1) there is justification for arguing that accessing Netflix US (and other services) from NZ is copyright infringement because their terms specifically prohibit that.
2) there is justification for arguing that global mode ISPs are a party to that infringement because they actively encourage it and take specific actions to enable it. (this is why Spark etc would not be liable, because they do not do actively encourage it)
3) If they get the studios on board, they can make a general case for Sky etc suing the ISPs and Bypass networks. Even if they don't get studios on board, Sky etc can sue for specific copyright breaches for the content where they hold the exclusive NZ rights.
4) the parallel importing analogy doesn't hold water because of the difference between importing a physical thing vs streaming which involves making a copy of the content on your computer (even though it is just a temporary copy)

That's all I can remember.

SepticSceptic

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#1287639 20-Apr-2015 11:19

Seems available now

Sounddude

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#1287654 20-Apr-2015 11:57

Interesting read on the Bypass Blog

https://bypass.net.nz/blog/post/20_Apr_2015_big_media_gang_takes_consumer_choice

Including another letter from BuddleFindley

https://bypass.net.nz/Big_Media_Gang_Letter_2.pdf

mdf

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#1287661 20-Apr-2015 12:25

Interesting. Not sure the additional correspondence adds much. I didn't think there was much doubt there was a "communication" of copyrighted works to "the public". The question really boils down to whether the particular communication (i.e. Netflix USA subscriptions) amounts to a breach of copyright. Which I'm not sure that it does (although I'm also not sure that it doesn't). There's also a geoblock red herring thrown in there for good measure.

I couldn't read the full NBR article (wonder if it's available using global mode...), but I'm not sure about the final point that streaming makes a (temporary) copy but DVDs don't. I'm not actually sure whether this is even technically correct (e.g. if I view a DVD on my PC using VLC and libdvdcss, am I actually watching it in "real time" or is there a small copied buffer). In any event, you would hope that the court doesn't get into the technical minutiae of this, because if there is a loophole you can guarantee that someone will devise a technical way of exploiting it (i.e. streaming without a buffer). In any event, there are other ways of infringing copyright without copying (e.g. issuing copies of a copyrighted work to the public, or communicating that copyrighted work to the public).

My take on it, as I've harped on about it before, is whether breaching licence terms and conditions can be "elevated" to being a breach of copyright, or whether it is just a breach of contract.

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Oblivian

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#1287669 20-Apr-2015 12:35

Sooo... To me that reads clearer to they really are attacking the middle man providing the method now. As if they are capturing, and re-transmitting (which would breach rights fo sho) Hope all the VPN providers got the same C&D letters...? Cause their services do the same, no?

It mentions ramifications from ISPs being able to unfairly lure clients and undermine the local purchasers by advertising a bonus product - While I'm seeing exclusive back-hand deals made and offerings of 6months free of services if you skip town on your current and lock yourself in for 2 years.

*scratches head* same/same?

old3eyes

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#1287670 20-Apr-2015 12:38

SepticSceptic: Seems available now

Just tried. Still showing pay wall..

Regards,

Old3eyes

Behodar

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#1287675 20-Apr-2015 12:42

Sounddude: Including another letter from BuddleFindley

https://bypass.net.nz/Big_Media_Gang_Letter_2.pdf

I like how point 2 claims that Global Mode is unlawful because it circumvents TPMs, even though the Act specifically says that mechanisms that "control geographic market segmentation" are not TPMs.

NonprayingMantis

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#1287677 20-Apr-2015 12:44

Oblivian: Sooo... To me that reads clearer to they really are attacking the middle man providing the method now. Hope all the VPN providers got the same C&D letters...? Cause their services do the same, no?

maybe, but you are never forced to sue somebody if you don't want to. so it's really up to the rights holders (and exclusive licensees) who they chose to sue or not.

They would be pretty stupid to sue somebody outside the jurisdiction of NZ law, for example.

also, it's pretty clear form the text that they acknowldge that global mode is created for the express puspose of violating Netflix etc Ts and Cs. the same cannot be said for VPNs, which have many legitimate purposes.

It mentions ramifications from ISPs being able to unfairly lure clients and undermine the local purchasers by advertising a bonus product - While I'm seeing exclusive back-hand deals made and offerings of 6months free of services if you skip town on your current and lock yourself in for 2 years.

*scratches head* same/same?

I guess this refers to global mode being a differentiator for an ISP. If it turns out to be illegal, then those other ISPs have some sort of right to sue the global mode ISPs for enticing customers away with illegal offers. Not sure how that works though.
I think a while back when Slingshot got found to be 'slamming' customers from Spark by using wireline data, those customers were able to leave slingshot for no penalty. If global mode is found to be illegal, the same might apply here.

The difference between global mode and the ISPs who offer 'six months free Neon' etc is that offering six months free neon is totally legal. Global mode is (potentially) not.

Slingshot could probably have done a similar deal with Neon if it wanted to - they certainly had an Igloo (another Sky business) deal a year or two ago, and Igloo<<< Neon

NonprayingMantis

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#1287682 20-Apr-2015 12:45

Behodar:
Sounddude: Including another letter from BuddleFindley

https://bypass.net.nz/Big_Media_Gang_Letter_2.pdf

I like how point 2 claims that Global Mode is unlawful because it circumvents TPMs, even though the Act specifically says that mechanisms that "control geographic market segmentation" are not TPMs.

".. for otherwise non-infringing content."

i.e. watching a US bought DVD in NZ is otherwise non-infringing. (since there is nothing in the DVD terms that state you may not watch outside certain countries)

If they can successfully argue that watching US Netflix content in NZ is otherwise infringing, then this exception does not apply.

mdf

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#1287687 20-Apr-2015 13:01

NonprayingMantis:
Behodar:
Sounddude: Including another letter from BuddleFindley

https://bypass.net.nz/Big_Media_Gang_Letter_2.pdf

I like how point 2 claims that Global Mode is unlawful because it circumvents TPMs, even though the Act specifically says that mechanisms that "control geographic market segmentation" are not TPMs.

".. for otherwise non-infringing content."

i.e. watching a US bought DVD in NZ is otherwise non-infringing. (since there is nothing in the DVD terms that state you may not watch outside certain countries)

If they can successfully argue that watching US Netflix content in NZ is otherwise infringing, then this exception does not apply.

Agreed. And if that is that case, the movie studios can essentially ban parallel importing DVDs by changing the licence conditions there too. Wonder how long that will take...

NonprayingMantis

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#1287698 20-Apr-2015 13:08

mdf:
NonprayingMantis:
Behodar:
Sounddude: Including another letter from BuddleFindley

https://bypass.net.nz/Big_Media_Gang_Letter_2.pdf

I like how point 2 claims that Global Mode is unlawful because it circumvents TPMs, even though the Act specifically says that mechanisms that "control geographic market segmentation" are not TPMs.

".. for otherwise non-infringing content."

i.e. watching a US bought DVD in NZ is otherwise non-infringing. (since there is nothing in the DVD terms that state you may not watch outside certain countries)

If they can successfully argue that watching US Netflix content in NZ is otherwise infringing, then this exception does not apply.

Agreed. And if that is that case, the movie studios can essentially ban parallel importing DVDs by changing the licence conditions there too. Wonder how long that will take...

In theory yes I suppose so. That would stop the wide scale importers, but it would still be impossible to stop individuals from importing and/or using YouShop. And provided YouShop markets itself as a 'general' service, rather than saying "Buy DVDs from America!" then they can also continue to exist.

(and also since DVDs are a dying product anyway, one wonders whether they would bother with even making and attempting to enforce those changes)

mdf

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#1287705 20-Apr-2015 13:15

NonprayingMantis:
mdf:

If they can successfully argue that watching US Netflix content in NZ is otherwise infringing, then this exception does not apply.

Agreed. And if that is that case, the movie studios can essentially ban parallel importing DVDs by changing the licence conditions there too. Wonder how long that will take...

In theory yes I suppose so. That would stop the wide scale importers, but it would still be impossible to stop individuals from importing and/or using YouShop. And provided YouShop markets itself as a 'general' service, rather than saying "Buy DVDs from America!" then they can also continue to exist.

(and also since DVDs are a dying product anyway, one wonders whether they would bother with even making and attempting to enforce those changes)

Good point.

Is there anything else that is widely parallel imported that comes with an EULA? Just trying to think of anything else that may fall afoul of this.

Also just realised I didn't respond to your other post. I'm doing other things at the moment and don't have a practising certificate, so the term "lawyer" is currently verboten, but I was once and will probably be again someday. Mainly companies and securities (financial regulation) and did a bit of IT related stuff, but never really delved into the full blown IP side of things.

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