NonprayingMantis: 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!")

richms: Physical games have an eula and people do import them to get specific editions with bonus junk in the box.

mdf: 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.

ajobbins:

NonprayingMantis: 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!")

Actually, the Parallel Importing angle came from an actual IP lawyer, Lowndes Jordan partner Rick Shera. Based on his profile, I'd say he's fairly well qualified to have an opinion. "Rick is a leading New Zealand business, information technology and media lawyer (particularly internet law), and has a masters degree in internet and copyright law."

Hardly some "random guy on twitter"

NonprayingMantis:

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.

NonprayingMantis:

richms: Physical games have an eula and people do import them to get specific editions with bonus junk in the box.

the critical thing would be does the EULA prohibit using the software outside a specific region.

Licensor grants to Licensee a non-exclusive, nontransferable, perpetual license (the “License”) to install this Product within the country (or in the case of a country within the European Union within the European Union) specified by Licensee’s ship to address provided by Licensee in the ordering documentation for the Product at the time of purchase (“Licensed Country”) and solely for the development of software programs and/or management of its internal systems and data in the following manner: (a) If Licensee has purchased a Network Named User or Named User License, Licensee may install the Product on one or more computers and designate one person in Licensee’s organization ("Named User") the right to use the Product within the Licensed Country, provided that only the Named User uses the Product.

NonprayingMantis: The point is, if specialist IP lawyers can't agree on it, then it isn't clear at all.  

mdf: I haven't been able to read today's article

KiwiNZ: Going to Court is the best vehicle for a solution. It will end the endless speculation.