Top EU Court’s Advisor Says Companies Licensing Copyright Material Know And Must Accept That People Use VPNs To Circumvent Geoblocks
from the inherent-risk dept
One of the striking features of the copyright industry is the fact that enough is never enough. Give companies stronger enforcement of copyright, and they will still start pushing for more. An example is the EU’s Copyright Directive. Even when upload filters were approved against all expert advice, on the grounds that sufficient safeguards were built in, French politicians were persuaded by copyright companies to jettison even those weak user rights.
Similarly, no matter how much power is given to companies to enforce copyright, they always want to turn everyone else into their personal police squad. A recent example saw Sony trying to force a DNS service to stop resolving certain domain names that were allegedly implicated in copyright infringement.
A case currently before the Court of Justice of the European Union (CJEU), the EU’s top court, sees another such attempt to force a company to become copyright’s enforcer (via The IP Kat blog). It involves two Serbian companies: Grand Production, which produces TV programs broadcast in Serbia, and GO4YU, which runs an Internet streaming platform. GO4YU had a license to show Grand Production’s programs in Serbia and Montenegro, but not elsewhere. It therefore uses geoblocking to stop people outside those countries from accessing the material. Unsurprisingly, people used VPNs to get around those geoblocks.
Grand Production was unhappy, and turned to the courts, claiming that GO4YU would have known that people would use VPNs to circumvent the geoblocks, and was therefore responsible for the copyright infringement in some way. Because of the important questions it raised, the case moved through local courts all the way up to the CJEU. The court itself has not yet ruled, but as is usual for these cases, a special court advisor, known as an Advocate General, has offered his opinion. It’s not binding on the CJEU, but generally indicates how the case may go. In this instance, the comments of Advocate General Szpunar are particularly interesting (there’s no English version of his comments yet – the quotations below are DeepL translations of the Italian version). First of all, Szpunar has the following to say about the use of VPNs:
As is well known, neither in the virtual nor in the real world are there any protective measures that cannot be circumvented or violated. This can only be more or less difficult. The same applies to geographical access blocks. Different types of technical means, including VPN services, allow these blocks to be circumvented, in particular, by virtually changing the user’s location. Although technical means exist to counter such practices, they are not, and probably never will be, fully effective – progress in violation techniques is always one step ahead of progress in protection mechanisms.
That’s a recognition of the fact that VPNs are widely used to avoid geoblocks, and will never be completely countered, although the Advocate General did add a proviso:
The situation would be different only if the company GO4YU Beograd intentionally applied an ineffective geographic access blockade in order to effectively allow persons outside the territory in which it is authorised to communicate to the public the programmes produced by the company Grand Production to access the programmes in question, in a manner facilitated by the objectively existing possibilities on the Internet, in particular in comparison with the generally available VPN services.
In other words, provided a company makes reasonable efforts, it can’t be blamed if some people find workarounds. He then went on to note an important implication of the widespread use of VPNs:
The company Grand Production is probably right in asserting that the company GO4YU Beograd is aware that its geographic access blockade is circumvented via the VPN service. However, the company Grand Production is also aware of this fact. The circumvention of various types of protection measures by users constitutes an inherent risk in the digital distribution, especially on the Internet, of copyright-protected works. The company Grand Production, by allowing the company GO4YU Beograd to communicate its programmes to the public on a streaming platform in a certain territory, had to take into account the fact that a certain number of users could obtain access to them outside that territory.
That is only Szpunar’s view, and the CJEU may decide differently. Nonetheless, it shows a refreshing recognition by one of the EU’s most senior lawyers that there have to be limits on the copyright industry’s ability to bully others to do its bidding.