Legality and/or morality of geoblocking

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SaltyNZ

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#190950 18-Jan-2016 08:03

As suggested by MF, let's leave the other thread for reports on the possible success or lack thereof of Netflix's next crack-down on geoblock bypassing. This thread for the arguments over whether it's legal and/or moral. To reiterate my position:

Argument for morality: I choose to pay for something that I could get for free. I pay for Netflix. Netflix has paid for content. The producers of that content have been paid. If a local New Zealand producer sold exclusive rights to Netflix to only play their content in the US, and not NZ, then they have been paid. They are still free to sell those rights to Netflix for NZ, and/or to any other provider(s) they wish. My choice to watch an international library has not affected their income. If the sold exclusive NZ rights to TVNZ and then someone else came along and they realised they made a bad decision because they could have gotten more, then sucks to be them.

Argument for legality: it is formally declared to be legal for me to buy an otherwise legally available region 1 DVD and import it to New Zealand to watch. If you look closely at the fine print on your DVD you will note that what you have actually purchased is a license to watch the material. So in actual fact what I have legal permission to do is import the license to that content. Watching an otherwise legal stream from an international library is the same - I am importing the license to watch that content. Hypotheticals:

Would a local producer be disadvantaged in negotiations with TVNZ because I watch international Netflix? No, because I literally haven't watched free-to-air TV since the turn of the millennium. I haven't had Sky for nearly 4 years either. If their rights are devalued it's not because of geoblock bypassing
Would Lightbox exist if it were not for exclusive rights agreements? This is a specious argument; Lightbox does exist, and good for them. However, the law only guarantees you the right to try to make money. It doesn't guarantee that you actually will make money
Is international Netflix killing local content producers? I believe it's neutral. If they produce content people actually want to watch, then they'll manage. I'm not personally into Shortland Street, but I loved Outrageous Fortune*

*I watched it from free-to-air via Sky w/ the PVR and skipped all the ads. That makes a double-bad person.

Edit - I accidentally a word.

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#1473464 18-Jan-2016 08:17

You purchase the right to view the content according to the sellers terms and conditions you agreed to at purchase time, as long as those terms and conditions comply with NZ law.

If you wish to do otherwise you should renegotiate the terms of the sale or take the issue to the appropriate authority if you believe the terms breach NZ law. You cannot simply unilaterally change the terms and conditions something circumvention does.

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ockel

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#1473476 18-Jan-2016 08:37

Doesnt the fact that Netflix are making moves such that "those using proxies and unblockers will only be able to access the service in the country where they currently are" and openly stating so mean that this is more than a parallel importing argument.

As seen with the Global Mode issue this is an area untested by law. Is it a breach of the Copyright Act as it stands in countries around the world?

If Netflix believed that it was an example of parallel importing and there was a legal basis for it to continue then it would be taking no action and not making such statements.

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rugrat

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#1473483 18-Jan-2016 09:02

MikeB4: You purchase the right to view the content according to the sellers terms and conditions you agreed to at purchase time, as long as those terms and conditions comply with NZ law.

If you wish to do otherwise you should renegotiate the terms of the sale or take the issue to the appropriate authority if you believe the terms breach NZ law. You cannot simply unilaterally change the terms and conditions something circumvention does.

If someone provides a product cheaper or better to someone in another market, then as far as I'm concerned I have a right to purchase from that market.

If someone in my own country has paid more for it I don't see why I should be forced to buy off them, it's not my fault they paid more and I had nothing to do with the transaction between those two party's.

The all black Jersy was another one; people importing them from America would have been breaking the terms of sale over there.

Geo unblocking is just another version of Youshop.

It breaches the terms of Netflix, but if they want to terminate my account that's up to them. If they don't want my money they don't have to take it.

One news article looked at said about 30 million people using unlockers world wide. 21.9 million in China.
Not sure how locking out paying Chinese paying customers going to force their government to let it in, it'll just be goodbye to those customers and they'll find other means.

SaltyNZ

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#1473484 18-Jan-2016 09:05

ockel: Doesnt the fact that Netflix are making moves such that "those using proxies and unblockers will only be able to access the service in the country where they currently are" and openly stating so mean that this is more than a parallel importing argument.

No, Netflix only cares because the contracts they signed to get rights said they had to. They've already collected your money, no matter which region you actually watch. The second that either the law or the contracts changed to make geoblocking unnecessary or explicitly illegal, Netflix would drop it like a hot potato.

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ockel

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#1473486 18-Jan-2016 09:17

SaltyNZ:
ockel: Doesnt the fact that Netflix are making moves such that "those using proxies and unblockers will only be able to access the service in the country where they currently are" and openly stating so mean that this is more than a parallel importing argument.
No, Netflix only cares because the contracts they signed to get rights said they had to. They've already collected your money, no matter which region you actually watch. The second that either the law or the contracts changed to make geoblocking unnecessary or explicitly illegal, Netflix would drop it like a hot potato.

Exactly. you've noted that when the law changes that the issue will go away. The law hasnt changed so you've accepted the argument that it currently breaks the law. Its illegal. There need to be law changes - amendments to the Copyright Act putting media, software (and other intangibles) on the same footing as physical goods as covered by paralell importing.

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#1473487 18-Jan-2016 09:23

I have made my position clear in many other posts on the subject. First, current legislation does not prohibit geo-unblocking, not even in the corporate-run USA, and certainly not here. It is NOT illegal. Therefore, it cannot be piracy or theft.

I strongly believe that corporate attempts to enforce geographic content distribution are nothing more than dinosaurs clinging to an outmoded business model. These companies seem to be run by people who can only think in terms of physical possession, and who keep trying to find equivalents of that in the digital world. The same thing happened with music and CDs. A CD is an object that can be possessed and controlled and boy, did they ever try to hang onto that one as long as possible. Remember the days of $40 CDs?

Regionally restricted distribution models go entirely against the spirit and intent of the globalisation movement otherwise being pushed so hard by international corporations. It is a stunning example of corporate hypocrisy. How many want to bet that one of the first actions under TPP will be an attempt to force an international agreement banning geo-unblocking?

Geo-blocking causes disproportionate deprivation to small 'regions' like New Zealand, that do not have the resources or political will to enable the production and purchase of more than token amounts of quality content. The result is that we do not even have a choice to view much of the content available elsewhere. There is a reason why people here watch the BBC.

Until someone shows me indisputable evidence to the contrary, I remain convinced that content producers can earn a fair profit under a single market business model. The rest is just sheer greed. I do not agree that it is clever business practice, or in any way acceptable behaviour. It is amoral at best, and mean-spirited as well. Good business is not squeezing every last drop from the consumer. It is providing a fair product for a fair return.

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SaltyNZ

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#1473489 18-Jan-2016 09:24

ockel: The law hasnt changed so you've accepted the argument that it currently breaks the law. Its illegal.

No, I have not accepted that at all. As I said in the beginning, I believe it is legal by direct comparison with parallel importing and/or personal importing of out-of-region DVDs. What it is, is 'untested in court.' It remains uncertain until either someone takes it all the way through the courts and they say it's illegal, or parliament amends the Copyright Act to say it is illegal.

A law change to make it explicitly legal would simply remove the uncertainty.

There need to be law changes - amendments to the Copyright Act putting media, software (and other intangibles) on the same footing as physical goods as covered by paralell importing.

Absolutely this.

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ockel

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#1473499 18-Jan-2016 09:28

rugrat:
MikeB4: You purchase the right to view the content according to the sellers terms and conditions you agreed to at purchase time, as long as those terms and conditions comply with NZ law.

If you wish to do otherwise you should renegotiate the terms of the sale or take the issue to the appropriate authority if you believe the terms breach NZ law. You cannot simply unilaterally change the terms and conditions something circumvention does.

If someone provides a product cheaper or better to someone in another market, then as far as I'm concerned I have a right to purchase from that market.

If someone in my own country has paid more for it I don't see why I should be forced to buy off them, it's not my fault they paid more and I had nothing to do with the transaction between those two party's.

The all black Jersy was another one; people importing them from America would have been breaking the terms of sale over there.

Geo unblocking is just another version of Youshop.

It breaches the terms of Netflix, but if they want to terminate my account that's up to them. If they don't want my money they don't have to take it.

One news article looked at said about 30 million people using unlockers world wide. 21.9 million in China.
Not sure how locking out paying Chinese paying customers going to force their government to let it in, it'll just be goodbye to those customers and they'll find other means.

So buying a digital copy of Microsoft Office for Australia, NZ and US (or any other market) should only be different by the exchange rate?

Is it?

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Benoire

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#1473517 18-Jan-2016 09:44

I think we all need to take a step back and focus on the main issue here... Should the right of the consumer over-ride the right of the owner; in other words by going outside of the negotiated contracts between rights owner and 'broadcaster' you have broken the owners rights to the content... Is that fair and reasonable?

jmh

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#1473526 18-Jan-2016 09:54

Benoire: I think we all need to take a step back and focus on the main issue here... Should the right of the consumer over-ride the right of the owner; in other words by going outside of the negotiated contracts between rights owner and 'broadcaster' you have broken the owners rights to the content... Is that fair and reasonable?

In that example the contract is between the rights 'owner' and the broadcaster. It does not relate to any rights of the consumer because the consumer has not signed a contract, however companies must follow the laws of the land that it is doing business in.

NonprayingMantis

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#1473527 18-Jan-2016 09:55

As a consumer, I have no real issue with accessing USA Netflix (and, in fact, I do exactly that - using unblock-us for the last few years to watch USA NEtflix, BBC iPlayer etc) so I will focus my point here on an argument that is nothing to do with 'consumers' and is more to do with the interaction between Netflix and the Studios and the legal/moral side of that

(I do note that from a moral standpoint I, as a consumer, am definitely breaching Netflix's terms by doing this - lying is something generally regarded as immoral)

Moral/Legal argument against (but NOT from a consumers point of view)

Netflix and the various studios it licences content from have a freely agreed contract for that content. The contract states something like approximately.

"Netflix agrees to pay $x for the rights to show [content] in [country]. Netflix does NOT have the rights to show that content in any other country and must take reasonable steps to prevent customers from accessing it outside the regions where it has rights."

Just like basically any other property rights, studios that make and own the rights to content have the moral and legal right to determine what terms they sell their product under, and if other businesses want to sell that content then they have to agree with the studios terms on which to buy it. fundamentally no different from any other business selling a product - If I want to sell a surfboard I can choose the conditions under which I will sell that surfboard and people can choose to accept those conditions, or not buy it.

Basically, if Netflix wants to buy content for the NZ region, it must buy those rights from the studios under the conditions they agree to in the contract. If it doesn't buy those rights, then it cannot sell content to those regions. Currently, Netflix buys rights for some countries, but not for others, and is knowingly distributing that content outside it's legally acquired regions and breaking it's contracts and, not taking reasonable steps to stop people watching illegitimately.

Netflix has both a moral and legal (civil not criminal law) requirement to abide by it's freely entered into contracts, and take steps to stop people outside those regions accessing the content.

NonprayingMantis

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#1473528 18-Jan-2016 09:56

jmh:
Benoire: I think we all need to take a step back and focus on the main issue here... Should the right of the consumer over-ride the right of the owner; in other words by going outside of the negotiated contracts between rights owner and 'broadcaster' you have broken the owners rights to the content... Is that fair and reasonable?
In that example the contract is between the rights 'owner' and the broadcaster. It does not relate to any rights of the consumer because the consumer has not signed a contract, however companies must follow the laws of the land that it is doing business in.

you actually have - you agree to abide by Netflix Ts and Cs which state things like not accessing content in regions you are not allowed to. By doing that you are breaching your agreement with Netflix.

frankv

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#1473537 18-Jan-2016 10:07

MikeB4: You purchase the right to view the content according to the sellers terms and conditions you agreed to at purchase time, as long as those terms and conditions comply with NZ law.

If you wish to do otherwise you should renegotiate the terms of the sale or take the issue to the appropriate authority if you believe the terms breach NZ law. You cannot simply unilaterally change the terms and conditions something circumvention does.

From the NetFlix T&C, "These Terms of Use shall be governed by and construed in accordance with the laws of the Netherlands." So, even if they breach NZ law, I doubt that you can complain to anyone. And you're beyond naive if you believe that you can renegotiate the terms of the sale with NetFlix.

So, it's a take it or leave it proposition.

Incidentally, the T&C say that it is for your personal use... I believe that means (although of course it would depend on Netherlands law) that you cannot allow others to watch NetFlix using your account, even if you are also watching.

NonprayingMantis

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#1473543 18-Jan-2016 10:11

I have been trying to think of a usable analogy to how the business model works.

Essentially what the studios are trying to do is something called 'price discrimination' (you can google it for more detail, but basically it means charging different amounts to different people depending on their level of demand. It's not an inherently bad thing - it can lead to higher prices for some people but also lower prices for others)

An example of price discrimination you might think would be 'ok' would be senior citizen discounts. Some businesses offer discounts to people over 65. Sometimes those services are even free (e.g. bus services), or services/products put on specially for seniors (i.e. if you are under 65 you can't use it).

But imagine if a service popped up that said "get senior discount even if you aren't over 65" and offered to sell you a fake ID and a convincing rubber mask that meant you could easily get these discounts (advertised for 'novelty purposes only' of course to avoid legal questions about fraudulent ID), what would we think of that service? Morally ok? Legally?

What would we think of the people who utilised that service to get the discounted products?

MikeB4

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#1473572 18-Jan-2016 10:30

SaltyNZ:
ockel: The law hasnt changed so you've accepted the argument that it currently breaks the law. Its illegal.
No, I have not accepted that at all. As I said in the beginning, I believe it is legal by direct comparison with parallel importing and/or personal importing of out-of-region DVDs. What it is, is 'untested in court.' It remains uncertain until either someone takes it all the way through the courts and they say it's illegal, or parliament amends the Copyright Act to say it is illegal. A law change to make it explicitly legal would simply remove the uncertainty.
There need to be law changes - amendments to the Copyright Act putting media, software (and other intangibles) on the same footing as physical goods as covered by paralell importing.
Absolutely this.

The ultimate seller of the rights are the content owners(studios) their T&C's are what stands (unless law is breached, then they will not be sold or rights renegotiated) they give rights and determine whom the content can be on sold to.

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