Sky and copyright and Netflix

October 3rd, 2013 at 10:00 am by David Farrar

blogs:

It seems that the lawyers at Sky didn’t like my post on Netflix. They’ve not been in touch with me about it, nor did they get in touch with the folks at SciBlogs about it when I syndicated it there.

But late last week, the National Business Review asked if they could run it as part of their Weekend Edition. I agreed, as I always do. Shortly after it went up at NBR, I received an email from NBR’s Head of Digital saying that they’d had to pull the piece after a legal threat from . Sky’s lawyer wanted excised from the article the instructions on how to access Netflix from New Zealand. In my piece, I linked to an Australian website providing instructions on how to access Netflix. I also included a postscript noting that Hola seemed to work very well.

So it is there anything wrong with telling people how to get around geoblocking?

First, note that New Zealand generally allows “parallel importation”. The New Zealand Government, in general, does not think that it is its job to enforce whatever exclusive dealing arrangements that some overseas manufacturer wants to enter into with a domestic distributor. There is a minor exemption on DVDs and films where you cannot import films for commercial distribution for a period of five months from the date that the film is first made available to the public. This lets the theatres get a run where international windowing delays release here relative to the US. However, the ban specifically allows import of legitimate copies for personal non-commercial use. It would be reasonable to read accessing Netflix for personal use as falling into this category, though note that I am not a lawyer. I discussed the temporary ban here. …

But, by my read of 226b, the variety of mechanisms described at this Australian site simply work to circumvent a system controlling geographic market segmentation by preventing playback in New Zealand of a non-infringing copy of a work. Netflix’s catalogue of films and TV shows in the US is non-infringing in exactly the same way that a DVD on sale in the US is non-infringing. And buying a DVD there, bringing it here, and watching it on a region-free DVD player should be as protected as subscribing to Netflix via something like Hola or Unblock-us. Maybe it violates the Netflix terms of service in the US, and Netflix could be justified in cancelling somebody’s account if they deemed such use to be in violation of their Terms of Service. I expect that bringing a Region 1 DVD here and watching it on a region-free player might violate the DVD’s Terms of Service as well. But a take-down notice based simply on the use of the word Hola or a simple description stating that installing Hola was really easy? Again, I’m not a lawyer; hopefully I won’t have to consult one. I’ll rattle a tip-jar if I do and if it winds up being at all pricey.

Getting around geoblocking actually allows you to pay for a copyrighted work. I think we should resist all geoblocking. If you want less piracy, then allow us to buy the content we want.

Any lawyers have a view on whether Eric’s original blog post does fall foul of the Act?

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23 Responses to “Sky and copyright and Netflix”

  1. The Stig (34 comments) says:

    You don’t have Netflix? I’m never returning home! How do you watch the final episode of Breaking Bad? Did it piss you off to find out about the death of …

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  2. The Stig (34 comments) says:

    In all seriousness, I was in Romania two weeks ago, which was the first time I discovered Netflix wasn’t available everywhere. The Romanians are pissed off about this as well, however they don’t bugger around accessing Netflix through proxy servers or whatever it’s called. They just access pirated content. Everyone loses. In a globalised world Hollywood need to get globalised and end the discrimination.

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  3. anonymouse (709 comments) says:

    That fact that the NBR would pull a piece based on a threat from a vested interest shows to me how far that paper has fallen as a media organisation,

    Barry would have told them to run it and damn the torpedos

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  4. scrubone (3,090 comments) says:

    The Romanians are pissed off about this as well, however they don’t bugger around accessing Netflix through proxy servers or whatever it’s called. They just access pirated content.

    I think it’s the same pretty much anywhere.

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  5. Kleva Kiwi (285 comments) says:

    Its incredible really.
    Pirating would decrease a hundred fold if ready access (via sites like netflix) where made available to the world.
    Netflix is only $7.99 US a month!
    With proxy you also get access to Hulu, Fox, BBC etc

    But you can see why Sky is making threats here. $10 a month compared to Sky’s $80+ a month for less content and almost nothing that is current…

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  6. Eh? (77 comments) says:

    I seem to recall that a report to the Australian Government a couple of months ago recommended that if things didn’t improve with regards to access to digital media then the government should publicise geoblocking avoidance measures – meaning actively encourage it rather than just passively allow it.

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  7. Exclamation Mark (85 comments) says:

    “You don’t have Netflix? I’m never returning home! How do you watch the final episode of Breaking Bad? Did it piss you off to find out about the death of …”

    @ Stig – Thank fuck I have managed to figure out how to get Netflix through my PS3 and watched the final episode on Tuesday night because I opened Wednesday’s NZ Herald and on the TV page was a big picture of the final scene which would have ruined the ending for anyone who hadn’t seen it yet. The bastards, I’m surprised there hasn’t been an outcry over it.

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  8. The Stig (34 comments) says:

    Even in London, I had to watch it at 11am, when I came live on Netflix, just to avoid spoilers.

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  9. Camryn (553 comments) says:

    Does anyone technical know what is happening here…
    * I lived in the US until recently and retained all my US media accounts, credit cards and a mailing address.
    * I now live in New Zealand and use Slingshot as an ISP. I have their “Global Mode” turned on.
    * Amazon seems happy to stream my existing library of individually bought content but does not allow me to stream any of the movies in their Netflix-like plan (to which I remain subscribed) or to by any new individual shows / movies.
    * How is it figuring out where I am through Slingshots global mode?

    I will try other solutions but it’d be nicer not to have to… ideally I stream through my bluray player so any solution needs to be upstream of that, not just a browser fix.

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  10. pedrogarcia (52 comments) says:

    “You don’t have Netflix? I’m never returning home!”

    Anyone who can google ‘VPN’ or ‘Unblock.Us’ or similar has had Netflix here for ages – as well as Hulu, Vudu, Amazon Prime, I could go on.

    I still watch One News / Seven Sharp or their TV3 equivalents, but after 7:30pm it’s pure streaming in my house.

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  11. davidp (3,574 comments) says:

    Is Netflix a competitor to BitTorrent?

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  12. gazzmaniac (2,319 comments) says:

    No, Netflix is a competitor of Sky’s.

    It is interesting that Foxtel in Australia have been pushing “watch it the day after it comes out in the US” in their latest campaign. They are obviously feeling the threat from Netflix etc. as well as from piracy, so they are giving people no excuses (apart from price) for people to use what they consider are illegal services.

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  13. jakejakejake (150 comments) says:

    @Camryn: Try disable caching on your account at the slingshot website (this causes global mode to not work a lot of the time) and make sure your primary address on Amazon is set to the states.

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  14. davidp (3,574 comments) says:

    I can watch TV shows an hour or two after first broadcast in the States using BitTorrent. Waiting a day can be significant for shows that have a social backchannel. This mainly applies to shows that have a win-lose component where fans typically don’t want to be spoiled about the winner, but also want to discuss whether the right person won or not and if there are implications for the story arc (if there is one). Shows like Survivor and the WWE do this well, and even include hashtags in the broadcast so that fans can join in the backchannel using Twitter. I suspect all the talent shows do as well, but I don’t follow any of them.

    A day is a long time to be unspoiled. And if you want to jump in and contribute to the backchannel a day’s delay means everyone has moved on. Waiting a few hours while a torrent downloads doesn’t seem to be an issue as you’re just a few hours behind the US West Coast.

    I think the whole model of channelised television is dead. TVNZ and TV3 are essentially channels that sequentially stream some content produced by other people, and content creators. I suspect in five years time everything will be on demand, and there will be a few global companies that host and deliver content… maybe Apple, Google, Netflix, and a few others. You’ll be able to buy the same content from any of the competing hosting services… it won’t be segmented so that the consumer has to use multiple hosting services to access the complete range of available content. TVNZ and similar companies will be reduced to being content producers, which will mainly be a bit of local news and sport, and some local programs (assuming they create these rather than commission them from other content providers). But TVNZ will just provide this content to the hosting service. I don’t think they’ll bother to stream it over radio waves.

    All of which makes Freeview and digital broadcast television looking like an expensive dead end technology.

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  15. dime (9,800 comments) says:

    “I can watch TV shows an hour or two after first broadcast in the States using BitTorrent.”

    had any warning letters yet?

    Dime prefers sites like rapidgator. Costs me $10 a month i think to be a premium member? Got home from work last night, downloaded the latest sons of anarchy in 6 minutes. done.

    In saying that, there is still a place for sky. news, cnbc, comedy central (for family guy reruns), sport, cooking channel.. its all good. i just wont get soho. quicker to download and i do it when i want.

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  16. jakejakejake (150 comments) says:

    As far as I know, nobody in NZ has received a notice for downloading TV episodes or movies. The MPIAA and co do not want to set a precedent for paying for copyright notices which could be used against them in other countries.

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  17. meh (165 comments) says:

    If bit torrent is your thing I’ll just say whatbox. That is all.

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  18. davidp (3,574 comments) says:

    dime>had any warning letters yet?

    No. I think they’re an urban myth designed to scare children, but they don’t actually exist.

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  19. RightNow (6,966 comments) says:

    “had any warning letters yet?”
    My understanding was it is only music downloads being targeted at present.

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  20. tas (609 comments) says:

    To the best of my knowledge circumventing geoblocking is not illegal. So how can telling people how to do so be illegal?

    Whenever something I want is geoblocked I just laugh.

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  21. DylanReeve (182 comments) says:

    FWIW, I posted about Netflix and how to access it in March this year and I’ve yet to hear from Sky’s lawyers :)

    There are two (or three) issues at play here. The first in NZ law, which as far as I can see does not prohibit New Zealanders from using technical means to bypass the geographic restrictions of overseas content providers.

    The second issue however is the one that’s relevant to Sky. When they purchase content licensing they get some amount of exclusivity to that content (the specifics depend on many things, but in general it won’t be available in any NZ-based online content platform until the primary broadcast rights have been excercised).

    Now that contract with exclusivity is between Sky and the content owners, it’s nothing to do with New Zealand users.

    The third issue (and extension of the second) is that Netflix has only acquired rights for the content they offer within a specific geographic region. They are breaking their licensing agreements with content distributors by allowing people outside that geographic region to access it.

    So in theory Sky should complain to the providers who they’ve licensed content from, who in turn should approach Netflix about their providing non-licensed access. And I’m sure that conversation is held often, but the nature of the technology is such that the geographic restrictions can easily be bypassed.

    Sky’s only option then, to protect their investment and exclusivity, is to try to limit the general public’s access to that overseas content. They can then exert pressure against publishers who disseminate that information to the general public (rather than bloggers, I suppose, who are putting information online for the curious to find).

    It’s not an ideal situation for consumers, but it’s the nature of the current business model and while it is gradually changing, it’s a pretty complex issue.

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  22. wreck1080 (3,864 comments) says:

    Sky has serious problems in the long term.

    The rot has started with the loss of UK football to an online provider.

    The whole UFB / copper thing is related too – -people don’t want UFB (thus the so called 600m chorus subsidy).

    But, once UFB saturation increases 60% or more, online providers can seriously compete for sports like rugby.

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  23. DylanReeve (182 comments) says:

    “had any warning letters yet?”
    My understanding was it is only music downloads being targeted at present.

    Yeah, only RIANZ (or whatever they call themselves now) are issuing notices. NZFACT (who would represent film industry and maybe also TV studios) has said they feel the notice cost is too high.

    The cynic in me suspects that’s because the Film and TV companies can’t charge those enforcement costs to the artists – I don’t know if the record industry does that, but given the way the typically “charge” artists for just about everything else they do, it wouldn’t surprise me.

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