Very Preventable Nuisance for rightsholders, but not in court

Are you among the 20 percent of Europeans the European Commission says want access to digital content from another country? Perhaps, like European Commissioner for the Digital Single Market Andrus Ansip, you hanker for coverage of your national football team. Then, like him, you may well resort to using a virtual private network to circumvent national copyright restrictions.

VPNs allow users to mask their location and appear as though they are in a different country, a handy tool if you want to protect your privacy … or watch BBC iPlayer in Belgium.
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Ansip said he used VPNs as far back as December 2014: “I don’t want to steal, but being realistic, everyone knows that I don’t need to pay. There are technological ways to watch without paying, but then creators don’t get any of my money.”

It’s a theme he has warmed to. He regularly points out that if people are prepared to pay for VPN services to circumvent access restrictions, they’d be ready to pay for content if they had a legal way of getting access.

Unfortunately for foreign content cravers, using a VPN expressly for this purpose is illegal within the EU.

The 2001 Copyright Directive, which is derived from the World Intellectual Piracy Organization treaty, makes it illegal for member countries not to include rules on so-called Technical Protection Measures. Essentially, even if they wanted to, national governments couldn’t make using VPNs to access copyrighted material legal.

However there are caveats. VPNs may be used for a variety of legitimate reasons, from protecting privacy to making business processes easier. Therefore Article 6 of the directive limits the ability of rights holders to sue VPNs to those that are specifically “promoted, advertised or marketed for the purposes of circumvention.” Certainly these exist (watch out for those with names that feature the words “TV” or “film”) but the majority of VPN providers are now wise to this rule and market themselves as primarily for privacy.

 

The directive also says VPNs are fair game if they have “only a limited commercially significant purpose other than circumvention.” In other words, they must be making their money illegally. By bringing “commercial purposes” into the mix, the directive appears to let free VPN services, which are generally funded by advertising, off the hook.

Finally, in order for rights holders to stand a chance of successfully suing a VPN, the network must be “primarily designed” for circumvention. Given how tricky this is to prove, it is not surprising there have been no significant court cases.

Of course, just because they aren’t filing lawsuits doesn’t mean that some big players aren’t taking action. Last month, Netflix started blocking VPN users — prompting hundreds of customers from Belgium, Germany, Spain, the U.K. and the Czech Republic to take to Reddit, the social media network, to complain about the move.

The first post in a thread that criticized Netflix for blocking VPNs read: “I’m personally considering canceling my Netflix subscription since 90 percent of the content I watch isn’t available in my country.”

GlobalWebIndex estimated around 54 million people last year used VPNs to watch Netflix every month.

European Competition Commissioner Margrethe Vestager is currently investigating six big Hollywood Studios and Sky TV over charges of anti-competitive movie-licensing deals. The use of VPNs reportedly came up at a three-day hearing in January.

One of the Commission’s key plans under the Digital Single Market Strategy is to provide better access for consumers and businesses to online goods and services across Europe. And it is targeting specific unjustified geo-blocking action such as outright blocking of website access to consumers based in other member states, denying consumers based in other countries the opportunity to buy services or access online content, or automatically re-directing consumers back to their local website.

If the Commission succeeds getting rid of these actions, VPNs may find themselves obsolete and users will look for other ways to mask their identities.

The bottom line for users: Rights holders probably aren’t going to come gunning for you or your VPN, even if you are breaking the law, but they will use technical means to prevent you seeing their programming if you aren’t in the right country.