Circumventing region-locking to access Netflix may be illegal

An entertainment and a copyright lawyer consider if using a VPN or proxy service to access Netflix and Hulu is illegal

Using a VPN or a proxy service to access services like Netflix or Hulu from New Zealand may or may not be copyright infringement, according to an entertainment and a copyright lawyer.

David McLaughlin, whose firm McLaughlin Law represents a number of entertainment industry organisations including RIANZ, said there was no simple answer to questions about using VPNs to access region-locked content.

A VPN, or virtual private network, masks the IP address of a user and can make it appear as if they are accessing content from another country. VPNs are sometimes used to circumvent region-locking in order to use services that would otherwise be unavailable to New Zealanders, like video streaming service Netflix.

"What you’re really talking about here is more direct individual access to a service that they may or may not be allowed," McLaughlin said.

McLaughlin said the situation was complicated because the content being accessed was otherwise non-infringing, but it could be argued that the region-locking was a "technological protection mechanism", or TPM, which would be illegal to bypass.

"It comes down to whether it’s a technological protection measure and whether what someone is doing is actually circumventing it," he said.

"If someone can get around it, if it is a TPM, that would arguably fly pretty close to copyright infringement."

However information lawyer John Edwards said he did not believe region-locking was a TPM.

"I guess it’s arguable but I don’t think that there would be a very strong argument for that," he said. "That part of the copyright act I think is more aimed at mechanisms that are installed in the copyrighted materials or in the medium, like region-locking on DVD players."

Edwards also said even if using a VPN does break a technological protection mechanism, then it is outside New Zealand so not under the jurisdiction of the act.

However McLaughlin said another factor was whether or not the service made the consumer aware of its terms of use, which would specify that non-US users were not allowed to access the content.

Green MP Gareth Hughes, who opposed the recent Copyright (Infringing File Sharing) Amendment Bill in parliament, said he believed accessing these services was illegal for the same reason.

Read more at PC World here.

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