VPNs are a great way for internet users to maintain their anonymity while surfing the web. Additionally, they can assist in evading geographical limitations.
The latter is useful if you're traveling internationally and want to watch your favorite shows on your favorite streaming service. Even though doing so is usually against the terms of service of video streaming services, it is a common practice among 'VPN pirates.
A case involving this kind of hacking is currently being heard by the European Union Court of Justice. The case involves a disagreement between Grand Production, a production company in Serbia, and GO4YU (now MTEL), a Serbian streaming service.
The two organizations worked out a licensing agreement to broadcast the show in Serbia and Montenegro. Unfortunately for Grand Production, they found out that the streaming service aired their show in Austria as well. In addition, anyone with access to a Serbian VPN service could watch the show from anywhere in the world.
The production company sued the streaming service in Austria for the illegal appropriation. The Supreme Court took the matter to the European Court of Justice for guidance on the complex VPN issue (CJEU).
The Central Court of the European Union (CJEU) is tasked with determining whether or not streaming services can be held liable for copyright violations committed by their customers who employ virtual private network (VPN) services to circumvent geo-blocking restrictions. This week, Advocate General of the EU Maciej Szpunar offered his opinion on the matter.
According to the AG, geo-blocking initiatives are really just a subset of DRM (DRM). While the Internet itself lacks physical boundaries, these are often used to create the illusion of such.
This means that using a virtual private network (VPN) to gain access to content from outside these arbitrary borders is a viable option for those who wish to avoid the restrictions that would otherwise apply. As a result, they spread the information to a wider audience, which may be a violation of copyright laws. But that isn't the real meat of the debate.
AG Szpunar draws on previous EU case law on hyperlinks to argue that users who circumvent a streaming service's geo-blocking measures are not breaking the law.
If the owner of the copyright (or their licensee) has such a block in place, then only those people in the specified geographical area will be able to view the protected content. Therefore, the rightholder does not engage in public communication in the remaining territory.
According to Szpunar, the idea that technical restrictions can be fully effective is a myth. The moment new safeguards are put in place, evaders will devise means to bypass them.
While he acknowledges the existence of technical solutions to combat these methods, he notes that "they are never infallible and probably never will be, as the techniques to overcome them are always one step ahead of safeguards."
Therefore, it is excessive to hold the owners of streaming services liable for this form of illegal access. Similar to cases involving inappropriate linking, the individual who violates the rules, and not the hosting site, should bear responsibility.
Without the help of any outside parties, "it is the users themselves who circumvent this blocking by accessing the above programs," Szpunar writes.
Grand Production claimed that GO4YU was aware that its customers were able to circumvent geographical restrictions by using VPNs. The Attorney General concedes this is probably true, but notes that the producer knew about the problem before it negotiated the licensing agreements.
"The distribution of copyright-protected works in digital form, especially on the Internet, carries with it the risk of bypassing various security mechanisms. Grand Production must have known that when they gave GO4YU Beograd permission to air their shows on a streaming platform in a specific region.
The overall verdict is that VPN 'piracy' cannot legally be held against streaming services. This finding has significant ramifications for the anti-piracy duties of online services as outlined in Article 17 of the Copyright Directive.
Nonetheless, this does not imply that these services are completely free of responsibility. A.G. Szpunar claims that companies can be sued if they either don't implement any geo-blocking measures or knowingly implement inefficient blocking tools.
The AG's opinion is not legally binding, but the EU Court of Justice usually agrees with it and will issue a ruling in the coming months.