Circumventing region-locking to access Hulu may be illegal

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

"Obviously it is illegal because it breaches Netflix’s or Hulu’s terms of use," Hughes said. "So while we don’t support people breaking the law we do sympathise with the demand which is simply not being met in New Zealand."

However Edwards said that breaches of private contracts were not illegal.

"Their remedy is in their contract with you. So they either sue your for damages, which they would be hard-pressed to establish because they couldn’t really show any economic loss, or they terminate your agreement for non-compliance," he said.

McLaughlin also said it was unlikely that a company like Hulu or Netflix would take legal action against someone who was circumventing their region-locking measures.

"The kind of people who are going to kick up a stink if this becomes quite widespread and wide-known is actually the people who’ve paid money for those digital licenses in New Zealand," he said.

"So if you were Sky or whoever was actually providing that content in New Zealand, and you had all these people who were just going straight to Hulu, then they may be the people from a commercial perspective that will be a bit more worried about it."

Green MP Hughes said that the Government, in conjunction with New Zealand rights holders, ISPs and international companies like Netflix, should be working to provide Kiwis with legal alternatives.

"I think when you have a market failure, which is what we see in New Zealand at this moment, it is important for the government to step in and try and provide solutions," he said.

"I find it absolutely amazing that we’ve spent tens of thousands of person hours, probably millions of dollars in terms of [Government] time, rolling out the copyright infringing file sharing act, when we could have actually spent some Government resources and time on legal options."