Hollywood's multiple dipping.
Sky TV et al are trying to spin the view that this is a business rather than a consumer issue. Their statement: "This is not about taking action against consumers; this is a business to business issue and is about creating a fair playing field." As others have pointed out, bollocks.
The case is about choice and what's a fair price to pay for video and TV content. In the US, the benchmark is US$8.99 - the cost of Netflix's video streaming subscription service in the United States.
In effect, Hollywood is multiple dipping - selling the same content over and over in a myriad of tricky slices and dices - which is of course one of the reasons why they make so much money.
Here, it's much more expensive. Why? Because Hollywood has made it so - having sold content licence rights on a country by country basis that require digital distributors to agree that they will only allow users in a particular country to access a programme or film. Hence the geo-blocking of New Zealand users - "Sorry this content is not available to view in your current location" - when they try to access some overseas content services. In effect, Hollywood is multiple dipping - selling the same content over and over in a myriad of tricky slices and dices - which is of course one of the reasons why they make so much money.
On the internet no one knows if you're in Waipukarau.
It has been said on the internet no one knows if you are dog (although these days with metadata and mass surveillance it seems they not only know this, but can also tell whether you're a Chihuahua or a Great Dane and when you had your last flea treatment).
While Hollywood has deployed geo-blockers to recognise and stop access to various countries, others such as BNSL, the creators of Global Mode, or Hola or UnblockUs have provided by-pass technologies to unlock Hollywood's arbitrarily imposed constraints. As I see it, there's nothing illegal about unblocking pathways or disguising your location. The ability to cut off access is also entirely within the control of those geo-blocking and who can quite easily shut down the so called "geo dodgers" as Netflix did in Australia earlier this year.
It's not about copyright.
Sky TV et al want the court to believe this case is about breach of copyright. Their statement: "We believe companies who profit by marketing and providing access to content they haven't paid for are in breach of copyright."
They're wrong. The content and the copyright has been paid for. The breach, if any, is a breach of contractual terms and conditions. New Zealand users who sign up to US content services such as Netflix have to indicate a US address when they agree to Netflix's terms and conditions. That means the consumer is knowingly in breach of those terms and conditions. It also means the content providers have the power to remove those users - as happened last month when HBO began emailing Australians and others outside the US in advance of the new season of Game of Thrones screening, telling them that its HBO Now service was only permitted for US users.
In an extra twist to this sorry saga, it now seems Spark Lightbox's service PremierLeaguePass.com is being accessed by some users in the UK, in breach of Spark's terms and conditions. The question these providers have to ask is whether they want to cut off paying customers.
If the case gets thrown out, or Sky et al lose and it's made clear that Global Mode is legal, then local streamers and broadcasters would have a very strong argument for paying much less for their content rights.
Parallel worlds are good for competition.
Many have likened the issue of this case to parallel importing. It's perfectly legal under our copyright and trademark law for anyone to import legally purchased content on DVDs (although if the Americans get their way on the Trans Pacific Partnership Agreement that will change too.) Yet while it's legal in the physical world, it's apparently not when consumers seek online ways to access and pay for the same content.
As we've seen with parallel importing, consumers benefit through more choice and better prices. It's the same online, with consumers using these services because often it's the only way they can get access to content that's not available here. What this case really highlights is the outrageous prices New Zealand distributors are being charged for so called exclusive content rights.
If the case gets thrown out, or Sky et al lose and it's made clear that Global Mode is legal, then local streamers and broadcasters would have a very strong argument for paying much less for their content rights. For consumers that would mean fairer prices. For the Hollywood studios it would mean less profit, a situation one imagines they'll not take lying down.
That's essentially what CallPlus with its Global Mode service is doing - providing a conduit or alternative pathway to the wider international network, which is what all internet providers do.
Keep the internet open.
It goes without saying that a fundamental of the internet is that, except in totalitarian regimes, it crosses borders in an open and democratic way. Which is how it should be. And what makes the internet such a great feature of our time. Essential to this openness is the principle that the data packets, regardless of what they are, must always get through in the same way - that they shouldn't be tampered with, throttled, accelerated or thwarted en route.
That's essentially what CallPlus with its Global Mode service is doing - providing a conduit or alternative pathway to the wider international network, which is what all internet providers do. As Wigley Law points out, Global Mode is a "facility" and stopping it is not going to stop internet access to Netflix or other overseas content services.
At issue here is the principle of net neutrality - a free and open internet, recently sanctioned by the US Federal Communications Commission and something President Obama is strongly in favour of. Net neutrality opposes the hijacking of the internet by strong commercial interests which control access to certain content against the ultimate interests of consumers. Whether our courts will understand this remains to be seen.
