Using a VPN to access Netflix: is it legal?

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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).
  6. 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.

5 thoughts on “Using a VPN to access Netflix: is it legal?

  • Interesting take, however one thing.

    To sign up to netflix you don’t actually give them a residential address. All that is required is a valid credit card.

  • Interesting – that suggests that in the case of Netflix, there really would be no contractual breach, and therefore no potential criminal liability for ‘unauthorised access’. On the other hand, it might increase Netflix’s potential liability to rightsholders.

  • James, I signed up to Netflix ~4 months ago and had to provide a US address. I live at a McDonalds in Fresno ;-)

    I have to admit I figured it was illegal but I was comfortable with it in the absence of a legit Aust service. I’ll be disappointed – to say the least – if I end up being prosecuted whilst my mates that torrent don’t.

  • And now that Gravatar has exposed my true identity that’s looking more likely than ever ;-)

  • Point 4)…. There are aspects of the copyright laws covering “substantial portion” os depending on the size of the cache, it may not meet this requirement if it was streamed and not downloaded.

    Could it get more complicated ? ;-)

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