Aug 3, 2012 - General, technology    2 Comments

Australian legality of proxy/vpns to watch BBC Olympic coverage.

Someone asked me about this today, so I thought I’d post my reply up here.

DISCLAIMER: I am in no way shape or form a lawyer, nor an expert in Australian copyright law.  This is simply my understanding from some basic research.  As far as I’m aware this hasn’t been tested in any Australian courts.

There seems to me to be two competing sides to copyright law in this issue.  I suspect that the first one that I’ll mention carries the weight.

 1) Access to (specifically in regards to copying and download, but I suspect it could be broadened out into all access) internet content is primarily regulated by expressions of limitation on the sites themselves (as per this fact sheet) .  In the case of the BBC’s online content, their terms of use state quite explicitly:

3.2 How you may NOT use BBC Online Services

  • 3.2.1 If you are outside the UK
  • You may not access, view and/or listen to certain parts of BBC Content (such as video or live television services) using BBC Online Services if you are outside the UK, although you may, in accordance with the Terms, access and view bbc.co.uk or other websites and listen to some (but not all) BBC radio content. The types of BBC Content that may be available outside the UK will usually depend on the BBC’s agreements with the persons who own rights in such content.
2) The only consideration I can think of that might make this at least possibly legal, is that Australian law allows bypassing of any regional encoding.  IF this restriction was considered some form of technical regional encoding, then it might be ok to bypass it.  However since it’s not so much a technical form of encoding, but rather a terms of use issue, I suspect that the preceding point would actually take priority.
It seems to me that the technical restrictions (blocking Australian viewers) is a means of enforcing the legal requirements (Terms of Use restrictions).
My verdict?  As Australian law currently stands, it’s illegal.

2 Comments

  • I’m not a lawyer either, so here goes my ignorant 2 cents.

    Much of what sites put in their terms and conditions is unenforceable under law. For example, many websites say “You may not create a link to this site without our permission.” That’s like saying “You may not publish our publicly available phone number without our permission.” That would never hold up in court – if it did, search engines would probably all have to shut down.

    So, what happens if the BBC puts a link on their site saying “watch this content now”, and you click it, and watch the content? According to the fact sheet, that’s an implied permission. What if that implied permission is in contradiction to the fine print in their terms and conditions page? Well that’s a fight to be had in the courts, but who, before reading the content of a web page, ever clicks the terms and conditions link? No one. I don’t think the courts would ever uphold an accusation of violating the terms and conditions if they were using the site in the same way that everyone uses every site, in a way which the wording on the site encourages them to use the site.

    But what if that person has taken actions specifically to get around a technical restriction? Well now it’s hard to argue that you didn’t know you were restricted from viewing it. But this isn’t so clear cut either. Not all ways around the restrictions are used with the specific intention of getting around the restrictions. Peer 2 peer anonymity software, software that proxies your internet activity through other users such that your original location and identity can’t be tracked, will often also allow you to get around technical restrictions as a side effect of protecting your privacy. In which case, you could reasonably argue that you didn’t know that the content was restricted, that you hadn’t specifically tried to avoid any content restrictions, but rather you were just using a tool to protect your own privacy, and you followed the implied permissions of the button that said “watch this content now”.

    • Thanks for your comments. I completely agree with you that it is a reasonably gray area in general. Furthermore, as I mentioned in the post, I don’t know of any of this stuff being tested by any Australian court (which as you point out would need to occur in order for it to become less gray).

      However nothing of what you’ve said changes the conclusions I reached in the post. The hypothetical scenarios you raise may well be contestable, but that doesn’t mean the specific scenario on view here is. Australian copyright law gives copyright holders the right to dictate who may access their content. In the words of the fact sheet linked to: “In many cases, permission to download material from a website is given on the site itself, but the fact that material is available to be viewed on a website, or is accessible using P2P software or networks over the internet does not, by itself, mean that you can use it as you wish.” Furthermore, you can’t get around it by arguing “implied” permission, given that the EXPLICIT permission spells out the limitations.

      I don’t think this particular question is gray. It is very clear. You are agreeing to the terms of use, which are created in order to protect the copyright holder (whether you actually read them or not is your own responsibility). Will you be prosecuted for circumventing technical protection measures? Extremely unlikely. Is it illegal? As Australian copyright law stands, yes.

      I’m not setting out on a crusade to tell people what to do, I just want the information to be accurately available.

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