So what’s wrong with watching the Olympic Games over the internet?

By Karl Schaffarczyk, University of Canberra

Reports of people the world over watching coverage of the Olympics via BBC’s online streaming portal abound. The reasons for this behaviour vary in the detail, but the common feature is: local coverage of the Olympics stinks.

In the United States, NBC’s decision to delay coverage has resulted in significant backlash and ridicule. The hashtag #NBCfail has been trending strongly on twitter with constant complaints of the shortcomings of NBCs coverage.

Channel Nine’s excessive focus on swimming inspired this meme. Source: http://www.facebook.com/ch9fail / http://quickmeme.com

In Australia, Channel Nine’s coverage has not been significantly better. The main criticisms of Nine are: excessive focus on swimming, and maximising ad coverage.

A popular response has been to access highlights coverage and live streaming directly from the BBC sports portal.

To comply with the licensing requirements of the International Olympics Committee, the BBC has implemented geoblocking to permit access only to those located in the United Kingdom.

Accessing the BBC’s video content from Australia is denied. BBC

But all of this is old news: circumvention of these geoblocks is commonplace and trivial with the use of Virtual Private Networks and proxy systems. Popular services include strongVPN, Hide My Ass! (which is currently marketing a summer sports special, but dare not use the word “Olympic”), and the DNS/proxy based Unblock Us.

But how legal is this?

Are laws being broken? Should those of us watching the Olympics in this fashion expect the police at our door or a nastygram from our internet provider?

Keith Allison

The obvious answer is that the BBC has tried to prevent your access, you have circumvented their attempt and accessed their content anyway, and therefore watching their content is infringing copyright. It’s common sense – just like breaking past a locked door – right?

Australian copyright law is not quite so simple.

To begin with, it’s very difficult to shoehorn streaming video media into a definition contained within the Copyright Act. Classification as “cinematograph film” is tricky, unless copies are made by the viewer (the ephemeral copy in RAM which is used during playback does not count).

Classifying highlights and replay coverage as a “broadcast” is problematic due to its on-demand and point-to-point nature. Live coverage fits poorly into the definition of a television broadcast.

Working the first definition, the issue here is that the geoblocking (an access control technological protection measure) is being circumvented.

But a specific exemption applies:

if the work … is a cinematograph film … [and the protection measure] controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy … acquired outside Australia.

So it appears that bypassing geoblocks is permitted under Australian Law, so long as the content is non-infringing.

Is the content infringing?

The BBC’s terms and conditions for personal use explicitly deny certain content (such as video or live television services) from being accessed from outside the United Kingdom.

This contractual requirement seems to fly in the face of the exemption for circumventing technical protection measures. Although there is no case law to guide us whether Australian law overrides a contractual non-export condition, it is unlikely that a court would uphold this interpretation.

The copyright protections available for accessing protected broadcast material such as the BBC’s live content have been made only with Pay TV in mind. These provisions are limited to encrypted broadcasts only.

Further, the BBC’s terms and conditions also forbid access to live TV to anyone without a UK television licence. This is a critical point, as very few people outside of UK would hold one.

While this area of law is untested by courts, it is quite clear that bypassing the BBC’s geoblocks to access coverage of the Olympics has the potential to land someone in hot water. Despite the possible PR disaster that accompanies enforcement action by copyright holders, no-one wants to be the bunny prosecuted in order to clear up the “grey areas” of the law.

The Copyright Act

For many years the Australian Copyright Act was held up as an example of world’s best practice: written to be media neutral to avoid frequent revisions as technology progressed. Recent changes have introduced narrow, technology specific definitions that exclude live streaming TV content, and a general failure to cope with the new internet-connected world. It is clear that this legislation requires a major clean-up.

While this tweet is obviously satirical, it helps us to remember that no matter how we perceive our free to air coverage, some have it much worse. Twitter

Let’s watch the Olympics, not lawyers.

But should we be considering enforcement of copyright at all? Shouldn’t we asking our regulators and legislators to enforce better coverage and more choice for the people of Australia?

We have done it before: the anti-siphoning legislation is a clear attempt to keep certain sport coverage available on free to air television.

While some have turned to Foxtel, should the many who don’t want or can’t afford Pay TV be forced to risk breaking laws to watch what they want to watch – especially when it is available for free to people in the UK?

Channel Nine is reported to have paid A$120 million for the exclusive rights to bring the games to Australians.

Sadly, buying the rights to broadcast the Olympic games carries no responsibility to broadcast the Games well, or at all. Doing a bad job of it doesn’t reduce the rights of Channel Nine, the BBC or the IOC in maximising their profits and enforcing their copyrights.

So, when you are watching the Olympics tonight, whether via Channel Nine, Foxtel, or streamed from the BBC, stay tuned for the next episode in The Copyright Wars. Rights owners will move to strengthen protection through changes to Australian law that enshrine geoblocking. Civil society advocates can and should resist those changes in the public interest.

The IOC and its broadcast partners need to pull their heads out of the clouds and embrace global transparency.

Karl Schaffarczyk does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published at The Conversation. Read the original article.

FYX ISP will unlock 'geoblocked' sites, but will it breach copyright?

This piece was originally published on The Conversation on the 11th May 2012

FYX ISP will unlock 'geoblocked' sites, but will it breach copyright?

By Karl Schaffarczyk, University of Canberra and Bruce Arnold, University of Canberra

The launch of a new internet service provider (ISP) in New Zealand isn’t something that would normally be worth mentioning.
But the launch of FYX (pronounced “fix”) by established online services provider Maxnet has already made a splash in New Zealand because FYX offers “global mode” internet access.
This is designed to avoid “geoblocking” – the restriction of content to the country or region of origin – as implemented in services such as ABC iView, BBC iPlayer, Netflix, Apple’s United States iTunes store and many others.
While “global mode” is an exciting development for consumers, the legality of such circumvention services is unclear. The likelihood of similar services appearing in Australia will depend on the success of FYX in New Zealand and the compatibility of such services with Australian law.
International copyright law is founded on what critics, such as communications researcher Herbert Schiller, damn as “information colonialism”. Markets such as Australia and New Zealand, pay higher prices than the US domestic market for videos, software, music, books and other content.
Consumers in these markets are often subjected to long delays before the content is available locally. This is reinforced by technological mechanisms that inhibit the free flow of copyright material across national borders.
Most people are familiar with technological protection measures (TPM) in the form of region coding on DVDs. Those TPMs try to prevent the disc being copied and try to prevent playback in a place other than the market in which the disc was sold.
Region coding allows Hollywood to segment global markets, releasing movies to one market at a time, maximising the effect of promotional campaigns, for instance.

FYX will allow users to circumvent the restrictions imposed by content providers. BBC

A second purpose of region coding is to prevent the movement of DVDs between countries with differently priced DVDs. The TPMs claw back Australian law’s support for consumers through parallel import measures. That is, it’s legal to buy DVDs, books and other material direct from another region for personal rather than commercial use.
Geoblocking is this offline market segmentation continued into the online world.
FYX is being promoted as a solution for New Zealand consumers wishing to access geoblocked content ahead of local release dates.
Promotion of the ISP in that way is interesting because it poses questions about the nature of online copyright law – something that is global rather than parochial – and follows recent decisions by Australian courts about the liability of ISPs for copyright infringement by their end-users.
In the case of Roadshow vs iiNet in April, the High Court found iiNet had not authorised its customers to breach copyright (by downloading films, TV programs and music through BitTorrent).
Australian law provides broad immunity – the “safe harbour” – for internet providers whose customers have infringed copyright. This immunity does not apply where the provider has authorised the infringement.
Because the main – but, importantly, not sole – feature of FYX is the circumvention of geoblocking, FYX will face questions about whether it would fail Australian legal tests of authorisation.
In NRL vs Optus – likely to be appealed to the High Court – the Federal Court decided Optus was at least partially responsible for infringing the copyright of broadcasts which it was recording for consumers.
In Australia, FYX or a similar service might also be considered responsible for enabling breaches of copyright.
But according to NZ intellectual property law commentator Justin Graham, FYX is in the clear under NZ law:

“It [the bypassing of geographical restrictions] is consistent with New Zealand’s policy on intellectual property, parallel importing and geographical restrictions”.

Australian law and New Zealand law both allow the bypassing of region coding on DVDs. But the application of these laws to geoblocking is yet to be tested.
Is FYX in breach of New Zealand or Australian law? The test for any legal question is ultimately in what the relevant court says.

Netflix is only available to users in some countries. Netflix

FYX appears to be offering a service that enables what many consumers would consider to be a victimless act, but there is damage to local rights holders who may have paid a high price for the rights to broadcast that content.
Prior to FYX, a local rights holder could only try to enforce their rights against individuals who were downloading the copyright content. In providing a commercial service and profiting from the actions of its customers, FYX is now a convenient target for local rights holders.
FYX will, if challenged, presumably argue it is not breaking any law. Its customers may be infringing the rights of movie studios, broadcasters and other rights owners but FYX is not responsible for what those consumers do. That argument would be consistent with iiNet’s persuasive claims in the High Court.
But because it is promoted specifically as a service which circumvents geoblocks FYX will have a hard time distancing itself from the activities of the consumer and claiming to be a mere provider of technology and internet access.
Due to the commercial nature of FYX, we will likely see copyright holders claim compensation from FYX; after all, the content is what will attract their subscribers.
One thing is certain: whenever copyright holders are threatened by an advance in technology there is rhetoric about disaster, crime and the need for government action.
Some 30 years ago the then Motion Picture Association of America president, Jack Valenti, described the VCR as the movie industry equivalent of the Boston Strangler.
Reports of the death of movies – or of broadcast television and the movie studios – seem to have been premature.
We should think carefully about the inevitable alarmist claims regarding FYX and be wary about movie industry calls for new laws that protect their interests at the expense of Australian consumers.
The authors do not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article. They also have no relevant affiliations.

This article was originally published at The Conversation. Read the original article.