Global mode over ? Lets see.....

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Ultimate Geek

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#1276855 3-Apr-2015 18:51

You could just as easily apply this whole tort thing to YouShop. YouShop is providing a service that allows consumers to circumvent local trade agreements that retailers have with international suppliers therefore removing sales from domestic businesses. I see no difference between this and streaming. Does this mean we will see law suits against NZ Post from Whitcoulls or Harvey Norman.

Procrastination eventually pays off.

NonprayingMantis

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#1276870 3-Apr-2015 19:23

richms: Has anyone even established that the contract with netflix is being breached even?

Yes, most definitely. That is one thing that is not debatable on this whole thing. (And it also applies to services like Hulu etc)

NonprayingMantis

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#1276871 3-Apr-2015 19:27

StarBlazer: You could just as easily apply this whole tort thing to YouShop. YouShop is providing a service that allows consumers to circumvent local trade agreements that retailers have with international suppliers therefore removing sales from domestic businesses. I see no difference between this and streaming. Does this mean we will see law suits against NZ Post from Whitcoulls or Harvey Norman.

Quite possibly, although the impact is probably a lot less, so less worthy of a suit because an individual importing a book still has to pay friieght etc, and using you shop also costs money. It's also a lot less convenient than using local suppliers.
Whereas using Netflix, and entirely Internet based service I with no physical product, is no more inconvenient and doesn't come with extra costs like freight.

I'm also not sure whether any agreement you have with Amazon is a contract that has any location specified on it I.e. Are you actually breaching amazons ts and cs by sending stuff to youshop then forwarding it to NZ? If not, then the situation doesn't apply

mdf

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#1276873 3-Apr-2015 19:31

Not my area of expertise, and I really don't want to get into the rights and wrongs of what the law should be, but it's worth emphasising that:

First the action (if any eventuates) is against ISPs offering a global mode or equivalent, not Netflix or any similar services.

Second, "copying" under the Copyright Act is very broad, and easily covers a transitory reproduction like streaming services. You don't need to end up with a physical/permanent copy at the end of it

Third, infringement and infringing copies under the Copyright Act is also very broad (see section 12 of the Copyright Act).

You can probably put together an argument that breaching the terms and conditions amounts to infringement by importation (see section 35) and providing a means for making infringing copies (section 37 of the Copyright Act). There are definitely some problems under this though.

I suspect (and I emphasise I have no inside knowledge here) that Lightbox et al will be running an argument under the "anti-circumvention" provisions under section 226 of the Copyright Act and following. This is New Zelaand's equivalent to the DMCA and DVD Jon's DeCSS issues.

Essentially a work that is protected by a technical measure to stop copying/infringing is a "TPM work". A TPM circumvention device is a device (or "means" - a method I think) that is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and has only limited commercially significant application except for its use in circumventing a technological protection measure.

You can't provide a TPM circumvention device/service (section 226A):

Prohibited conduct in relation to technological protection measure

(1) A person (A) must not make, import, sell, distribute, let for hire, offer or expose for sale or hire, or advertise for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows or has reason to believe that it will, or is likely to, be used to infringe copyright in a TPM work.

(2) A person (A) must not provide a service to another person (B) if—
(a) A intends the service to enable or assist B to circumvent a technological protection measure; and
(b) A knows or has reason to believe that the service will, or is likely to, be used to infringe copyright in a TPM work.

(3) A person (A) must not publish information enabling or assisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work.

I don't think that there's any real doubt that an anti-geoblocking feature would fit squarely into this. The issue is probably whether (a) geoblocking is a "technical measure" (probably yes) and (b) whether breaching Netflix Ts+Cs amounts to infringement (this is where the big question is).

Section 226B goes on to give special standing to licensees/right holders.

This is different to parallel importing because parallel importing a "real" good (not digital) undoubtedly doesn't involve breaching a technical protection measure to stop it operating. DVDs are a much better analogy - the original DMCA case (DVD Jon) was about this very issue.

I emphasise that I'm not trying to get into the rights and wrongs of this, and what the law should be, just offering my two cents about what the law as it currently stands says.

EDIT: typos

Rikkitic

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#1276879 3-Apr-2015 20:02

mdf:

Essentially a work that is protected by a technical measure to stop copying/infringing is a "TPM work". A TPM circumvention device is a device (or "means" - a method I think) that is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and has only limited commercially significant application except for its use in circumventing a technological protection measure.

You can't provide a TPM circumvention device/service (section 226A):

I looked into this when the Act came into effect. If this provision was actually enforced, Dick Smith, Harvey Norman and practically any other retailer of electronics goods in New Zealand would have to go to jail. To take just one example (there are many others), a simple device that converts different analogue video outputs to other formats (VGA, s-video or composite, for example) , also strips any copy protection signals in the process. I discovered this when I was trying to copy some protected VHS tapes. Admittedly, this was a long time ago and the technology has changed, but the principle remains. Even if I just film a video off the screen with my Harvey Norman camcorder, I am using a TPM circumvention device and I have been led into temptation by evil HN. It doesn't matter that the new video is lower quality than the old. The content has been copied and the technical protection has been circumvented. This is just yet another example of a stupid law dreamt up by incompetent lawmakers who don't understand the technology they are trying to regulate. Or maybe a camcorder doesn't fit the definition because it isn't primarily intended for copyright circumvention? There are thousands and thousands of bad DVDs for sale in Indonesia, China and elsewhere that were all made with camcorders in cinemas. If that isn't a primary use, I sure don't know what is. These laws are ridiculous and everyone (except the lawmakers) knows that.

Plesse igmore amd axxept applogies in adbance fir anu typos

NonprayingMantis

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#1276881 3-Apr-2015 20:06

Rikkitic:
mdf:

Essentially a work that is protected by a technical measure to stop copying/infringing is a "TPM work". A TPM circumvention device is a device (or "means" - a method I think) that is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and has only limited commercially significant application except for its use in circumventing a technological protection measure.

You can't provide a TPM circumvention device/service (section 226A):

I looked into this when the Act came into effect. If this provision was actually enforced, Dick Smith, Harvey Norman and practically any other retailer of electronics goods in New Zealand would have to go to jail. To take just one example (there are many others), a simple device that converts different analogue video outputs to other formats (VGA, s-video or composite, for example) , also strips any copy protection signals in the process. I discovered this when I was trying to copy some protected VHS tapes. Admittedly, this was a long time ago and the technology has changed, but the principle remains. Even if I just film a video off the screen with my Harvey Norman camcorder, I am using a TPM circumvention device and I have been led into temptation by evil HN. It doesn't matter that the new video is lower quality than the old. The content has been copied and the technical protection has been circumvented. This is just yet another example of a stupid law dreamt up by incompetent lawmakers who don't understand the technology they are trying to regulate. Or maybe a camcorder doesn't fit the definition because it isn't primarily intended for copyright circumvention? There are thousands and thousands of bad DVDs for sale in Indonesia, China and elsewhere that were all made with camcorders in cinemas. If that isn't a primary use, I sure don't know what is. These laws are ridiculous and everyone (except the lawmakers) knows that.

Sometimes with laws they cover a huge amount of things that are never enforced for practical reasons (such as VGA cables in your example) but when a valid reason comes about they can be enforced.

Jaywalking is an obvious non-digital one. Very rarely enforced, but can be if someone does something really dangerous.

MileHighKiwi

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#1276888 3-Apr-2015 20:28

People are using Global Mode because they can't get content they want. If Global Mode is turned off some of those people will say 'oh well, it was fun while it lasted', and others will set up VPN/DNS, and some will torrent. Sky et al have nothing to gain with this stance, IMO. It certainly will not create a rush of new subscribers to their services. Sky? Too pricey; Lightbox? Not enough devices and no movies/docos; Spark? I'm happy with 2 Degrees. Mediaworks? Um, what do they do? Shi* like the Block? No thanks.

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raytaylor

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#1276977 4-Apr-2015 01:25

freitasm:
VideoEzy to complain buying DVDs on Amazon is piracy.

Wait just a minute there.... your saying VideoEzy still exist???

Ray Taylor

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raytaylor

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#1276978 4-Apr-2015 01:34

KiwiNZ:
freitasm: Two words: parallel importing.

Has the accessing of geoblocked content been tested in court regarding it being parallel importing?

There recently was a hoohaah with the content ratings board? accusing ISP's of broadcasting content that had been banned in NZ.
I think if that went to court, it would have created a legal precident regarding parallel importing and nzpost's role which would easily carry over to this debate.

I have not followed up on the outcome

Ray Taylor

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raytaylor

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#1276979 4-Apr-2015 01:41

richms: So where do you draw the line in this list of things?

Its legal for me to lend you a DVD I own.

so is it ok for me to lend you a DVD and the drive that it goes in, incase you dont have one?

Is it ok to let you come to my place and plug your PC into that dvd drive and watch the content?

Is it ok for me to let you not have to drive to my place, and instead connect to that dvd drive over the internet to watch that content?

What does your EULA say?
You have usually purchased a copy of the movie, on physical media, but are prevented from showing it publicly.
That would generally mean you can loan a friend the disc and the dvd player for them to set up and view themselves, but to take the disc and playback machinery, set it up and play it for them would probably constitute a public showing.

In the case of netflix, the end user is simply breaking the netflix EULA and could have their account suspended or whatever the punishment is set out in the EULA. The punishment cant be too bad because its a contract and therefore netflix would only be entitled to actual damages which would be incredibly hard to justify beyond an account suspension since the end user had still paid their agreed price.

Ray Taylor

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raytaylor

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#1276980 4-Apr-2015 01:58

I have been thinking about this for a while now and the only way I can think of a solution is for the content owners (sony) to enforce tight distribution tactics when they sell broadcast rights for a show to netflix.

They can say to netflix "we will sell you this show, only if you prevent it from being viewed on your service overseas by doing X Y Z"
Currently they say "you can only broadcast this if you 'do your best' to prevent it being viewed on your service overseas"

Do the do your best part would need to change.

Netflix can easily create a list of approved ISPs. That means most VPN providers etc would be out of luck since they are often their own ISPs or have their own ip blocks.
They can tell netflix to stop looking at APNIC, ARIN, Maxmind databases for geolocation info, and instead look at those databases to find the source ISP by their ASN number.

Then simply say only customers of Approved Partner ISP's can view the content.

Take the incoming source ip address, check the ASN number, if approved then return the content, if not present a list of ISPs that the viewer could connect to netflix US through.

Sure its not foolproof, but it would cut 90% of the dns/vpn/geoblock services as having the exposed gateways using ip addresses of an approved ISP and being within their network via BGP path mapping could be harder for the VPN providers.

I now feel i have done too much evil thinking for the day.

Ray Taylor

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rugrat

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#1276986 4-Apr-2015 03:17

I don't think Netflix has any interest in stopping it.

As for companys dictating terms to netflix, it might be a case of netflix then saying see you later and that company loses a large sale.

If they say you can only access the region you signed up in, then everyone with know how, just signs up and pays the US one since it has the biggest catalog.

TTPA if done takes away our parallel import rights and many other rights, I can't see the government remaining in power for to much longer if they sign away our rights, and then people start to see the effects on their lives, surely a new government can screw up an international treaty that's been done undemocratically, and not in the nations interest. Hopefully people wake up by the next election on how hard National is pushing for it to be signed, before it's to late. Other countries arguing points on it, so hopefully it drags it out long enough.

Lightbox doesn't buy all content that's available, which means even if subscribed to Lightbox, if they block accessing other services, they are limiting what people are able to watch in NZ.

Sky overcharges and fills most content with ads or self promotions, why should someone put up with that, only reason they do is because Sky tries to lock others out.

I don't know what the outcome will be, but I hope the legal action against global mode fails.

sultanoswing

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#1276995 4-Apr-2015 08:38

NonprayingMantis:
richms: Has anyone even established that the contract with netflix is being breached even?

Yes, most definitely. That is one thing that is not debatable on this whole thing. (And it also applies to services like Hulu etc)

By "established" I think the standard is a concluded Court case. Do you have an article / link / case name to reference?

NonprayingMantis

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#1277013 4-Apr-2015 09:36

sultanoswing:
NonprayingMantis:
richms: Has anyone even established that the contract with netflix is being breached even?

Yes, most definitely. That is one thing that is not debatable on this whole thing. (And it also applies to services like Hulu etc)

By "established" I think the standard is a concluded Court case. Do you have an article / link / case name to reference?

No, I just think it is so obviously true that it doesn't need one. its not even something that has entered the debate because it's 100% true.

https://www.netflix.com/termsofuse

Section 4.3

dafman

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#1277066 4-Apr-2015 10:55

MileHighKiwi: People are using Global Mode because they can't get content they want. If Global Mode is turned off some of those people will say 'oh well, it was fun while it lasted', and others will set up VPN/DNS, and some will torrent. Sky et al have nothing to gain with this stance, IMO. It certainly will not create a rush of new subscribers to their services. Sky? Too pricey; Lightbox? Not enough devices and no movies/docos; Spark? I'm happy with 2 Degrees. Mediaworks? Um, what do they do? Shi* like the Block? No thanks.

Dinosaurs in their death throws, the world is changing.

Disappointing to see one of the new kids on the block joining in, we will have to see if Lightbox survives the distance. Only 7 months out of the blocks and alredy complaning about GST, threatening legal action against other ISPs.

Sky is only as good as long as they can hold onto the rugby.Certainly, their days of charging like wounded bulls for advertisement-laden offerings are numbered.

And then there are Mediaworks, hanging their hat on Paul Henry. Good luck there!

Meanwhile, isn't Netflix grand.

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