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Is using a VPN to access blocked content illegal?

Many piracy-opposed Australians use Virtual Private Networks (VPN) to access and pay for content offered by international streaming providers such as Netflix, Hulu and HBO Go thinking that ethically, morally and legally they’re on the side of right.

(Security companies have also long encouraged internet users to adopt VPNs in order to protect their privacy and security online).

But even if you’re paying for content, you could still be breaking the law.

Paul Gordon, IP, technology and media lawyer for Finlayson’s law firm told Techly that using a VPN to stream content could cost you up to $10,200 and the potential for legal action by the content owner.

Mr Gordon said paying to stream content may make you feel good, but legally it’s no different from piracy.

“Legally it might be a different section of the Copyright Act but even if you’re streaming, it’s no different to using copyright material without a license,” he said.

“Even if you’re paying Netflix $10 a month, Netflix doesn’t have the right to give you access to that content because it’s not licensed in Australia.

“There may be good will in terms of how harshly you are sentenced in a court of law, but the fact is you are using content without a license.”

What laws am I breaking?

Section 10 of the Copyright Act, 1968, makes it illegal to access content that has “Technological Protection Measures” (geoblocked content).

Playstation jailbreaks and modification chips were outlawed in Australian in 2005 after Sony launched a legal injunction against the company who created and sold the device, OzModChips.com.

Changes were subsequently made to the US free trade agreement not long after the ruling to enforce the protection of geoblocked content, Mr Gordon explained.

The Liberal Government of Australia is looking to further bolster intellectual property laws via the trans-Pacific Partnership (a 2005 economic agreement made between the US, Australia and 11 other pacific nations).

Surely there’s a loophole somewhere?

There is a view in much of the legal community (including the Copyright Council) that geoblocking is not technically a “Technological Protection Measure”, which means it isn’t covered by the Copyright Act, Mr Gordon explained.

But as there has been no High Court ruling on this matter, the issue is up for grabs.

In other words, just hope that you get a fair-minded judge with a tech background.

Also, you may still be breaching your license agreement with the content provider by providing a false address or zipcode.

It could be argued that by signing up to a geoblocked streaming service you have acted fraudulently.

“That could lead to liability in Court, which may include financial damages but is unlikely to include jail time,” Mr Gordon said.

Your VPN/ISP might be forced to rat you out anyway

Most VPNs rid themselves of any legal liability for your behaviour when you sign up to the service by writing into their contracts an agreement that you will not use the service to access copyright restricted or geoblocked content.

It may not be in any company’s interest to rat on their customers but sometimes they have no choice.

Late last year Roadshow Films took iiNet to court (backed by the Motion Picture Association of America) to try to hold it responsible for its customers’ illegal piracy.

The case went all the way to the High Court, which overturned the case.

Mr Gordon says even though the suit was thrown out, it doesn’t mean future suits will be.

As different situations arise, ISPs may be forced to rat out their customers to the police.

“iiNet did not legitimise file sharing in any way,” Mr Gordon said.

“It’s just that it wasn’t responsible in that instance. The police could look into these things if they wanted to.

“They could get sharing records and take it up with the individual, but it would be very costly and time consuming.

“I’m not sure they have an appreciation for it when they’re busy solving other problems out there.

“But strictly speaking, there’s nothing stopping people from taking action.”

That’s ridiculous, surely this contradicts anti-trust laws?

Technically, yes.

The 1992 Broadcasting Services Act promotes competition, innovation and diversity.

The purpose of the act is to (amongst other things), “provide a regulatory environment that will facilitate the development of a broadcasting… and datacasting industry in Australia that is efficient, competitive and responsive to audience needs”, “encourage diversity”, “promote the provision of high quality and innovative programming by providers of broadcasting and datacasting services”.

The purpose of the Consumer Act of 2010 is to provide a regulatory framework that promotes “the efficiency and international competitiveness of the Australian telecommunications industry… and to promote the supply of diverse innovative carriage services and content services, and to promote the development of an Australian telecommunications industry that is efficient, competitive and responsive to the needs of the Australian community.”

James d’Apice, associate at Fox and Staniland Lawyers told Techly that where carriage service providers and and content providers are one and the same, it could be seen as a failure of the Broadcasting Services Act 1992 and the Telecommunications Act 1997.

“It could be argued that the current regime is anti-competitive for a number of reasons including very high barriers to entry created by having large companies in both markets,” he said.

“It could also be argued that the current regime discourages innovation, fails to encourage local content and makes it less likely that service providers will respond to the needs of end users.

“The counter-argument is clear enough, if a little laissez faire: in short, let the market do what it wants and consumers will use the services they like.”

So where does this leave us?

Well, clearly you’re at risk if you’re using a VPN to access Netflix and Hulu – though I imagine it’s harder for law enforcement services to make an example of someone who has been paying their $8 a month even when their own government makes it difficult for them to watch content without breaking the law.

Your best move is to make sure your VPN is routed through a country that doesn’t have mandatory data retention laws.

Those countries include the Czech Republic, Germany and Poland.

The US is also technically on that list but seeing as how the National Security Agency (NSA) has free reign access to almost all information, I’d stay away if I were you.

About the author

Claire Porter is an award-winning journalist. Previously the tech editor of news.com.au, Claire has had her work published in some of Australia’s biggest websites and newspapers.

Leave a comment

Comment (6)

    Madison

    Friday 31 January 2014

    Thanks – this is a great article.

    You are correct to say that a VPN is illegal IF you violate a licence agreement to use it (which you probably will be, otherwise you wouldn’t need it).

    But geo-blocks are NOT TPMs, or at least the type of TPM that lands you in legal trouble. This is at least the opinion of the Attorney-General’s department, which said at a public hearing of the IT Price inquiry that they did not believe geo-blocks to be TPMs.

    Others have questioned this assessment and believe that the exemption that applies to DVD region coding should be broadened to specifically address the issue of online geo-blocks such as Netflix. The IT Price inquiry made this recommendation, so hopefully it is picked up.

    It also recommended that we should ban licence agreements and terms of use from endorsing geo-blocks. This is a great idea, but unfortunately I don’t see how it could actually work.

    Reply

    Frank

    Friday 31 January 2014

    Interesting read Claire! Any news of netflix and hulu actually working towards securing distribution rights for their content here in aus?

    Reply

    Trish

    Sunday 2 February 2014

    To back up what Madison said, while using a VPN to access netflix may contravene the netflix terms and conditions (I haven’t read them, just assuming) it is highly unlikely to fall foul of the anti-circumvention provisions. As a reference, the Attorney-General’s Dept to the IT Pricing Inquiry stated ‘considers it unlikely that the technologies discussed would fall within the definition of an ‘access control technological protection measure’. Where a geoblocking technology is not a technological protection measure, the Copyright Act does not prevent a person bypassing that geoblocking technology’

    http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ic/itpricing/report.htm from 4.67

    Reply

    More Mr Nice Guy

    Thursday 2 October 2014

    Now, I’m not a lawyer like the guy in the article, but it seems to me that Section 10 of the Copyright Act 1968 says the EXACT OPPOSITE OF WHAT THE ARTICLE CLAIMS IT SAYS!

    Take a look at part (iii) of the “technological protection measure” definition. It specifically excludes a measure which “controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy of the work or other subject-matter acquired outside Australia”.

    Check it out yourself:
    http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#technological_protection_measure

    A little hard to read due to legalese but don’t let that put you off.

    Reply

    Chris

    Tuesday 24 March 2015

    How about this from the communications minister:
    Q: Many Australians use a VPN to access Netflix in the US. Is it illegal for me to use a VPN to access Netflix?

    The Copyright Act does not make it illegal to use a VPN to access overseas content.
    While content providers often have in place international commercial arrangements to protect copyright in different countries or regions, which can result in ‘geoblocking’, circumventing this is not illegal under the Copyright Act.

    Source: http://www.malcolmturnbull.com.au/issues/new-measures-to-tackle-online-copyright-infringement

    Reply

    Matt Alfs

    Monday 6 July 2015

    Not so much illegal, as it breaks terms of service between the customer and streaming/content service provider.

    Reply