Many Australians want access to content that is not available in Australia. Some choose to download that content from filesharing networks; others pay for a VPN so that they can pretend to be in the US, in order to pay sites like Netflix for access. I was recently asked whether this was legal. Well, it turns out that the situation is a bit complex. The short answer is that it might technically be an infringement of copyright under Australian law, and there is a small possibility that it might be a crime under Australian law as well. Most of the liability, however, rests with the owner of the foreign content platform (i.e., Netflix), and there is always a risk that if they were sued, they might seek to recover damages from their users. More detail over the fold.
- Signing up with a fake address is likely to be a breach of contract with the provider; the owner of the content platform could terminate the account, if they chose, and potentially seek damages, though it is unclear any real loss would be suffered. Australian users might realistically be disconnected and lose their prepaid balance.
- It is probably not a direct copyright infringement for a user to receive a communication from a content platform located overseas. Australian users therefore cannot easily be sued by copyright owners.
- The platform owners will not have the rights to communicate copyright material to Australian users. They will be liable to copyright owners for direct copyright infringement.
- Here’s where it gets interesting. If the original act of communication was infringing, that means that any temporary copies that are made in the cache as someone watches a foreign content service are also infringing. This means that technically, a copyright owner may sue an Australian user for infringing copyright after all.
- Potentially worse, if content platforms are sued by copyright owners, they could seek to recover any damages they suffer as a result of users fraudulently signing up to their service (not likely, but possible).
- Most worryingly, signing up with a fraudulent address might be a problem under criminal law. Accessing a foreign content platform with a fake address might constitute ‘unauthorised access’ to restricted data, although US courts have found that breaching terms of service is not sufficient to trigger criminal liability. There are also criminal offences for copyright infringement, but these only trigger when the infringement is on a ‘commercial scale’ (what exactly that means is currently not well defined in Australian law).
In conclusion, using a VPN to access a foreign content platform might cause serious legal problems for the owners of the content platform, particularly since the owners of Australian and other international streaming rights will likely be upset to be cut out of the market. It might also be an infringement of Australian copyright law on a technicality, and it is conceivable but not likely that Australian users might be sued. There is also a remote possibility of criminal liability under Australian law.
The solution to all of this, of course, is for international rightsholders to sort out their licensing problems. Clearly, Australians want to do the right thing and pay for access to content, but are prevented from doing so by the lack of viable distribution channels in Australia. Copyright infringement is a symptom of market failure here; addressing the unmet demand would be likely to have dramatic benefits for copyright owners.