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Bluebook 21st ed.

Michelle Edelman, The Thrill of Anticipation: Why the Circumvention of Geoblocks
Should Be Illegal, 15 VA. Sports & ENT. L.J. 110 (2015).

ALWD 6th ed.

Edelman, M. ., The thrill of anticipation: Why the circumvention of geoblocks should
be illegal, 15(1) Va. Sports & Ent. L.J. 110 (2015).

APA 7th ed.

Edelman, M. (2015). The thrill of anticipation: Why the circumvention of geoblocks
should be illegal. Virginia Sports and Entertainment Law Journal, 15(1), 110-134.

Chicago 7th ed.

Michelle Edelman, "The Thrill of Anticipation: Why the Circumvention of Geoblocks
Should Be Illegal," Virginia Sports and Entertainment Law Journal 15, no. 1 (Fall
2015): 110-134

McGill Guide 9th ed.

Michelle Edelman, "The Thrill of Anticipation: Why the Circumvention of Geoblocks
Should Be Illegal" (2015) 15:1 Virginia Sports & Entertainment LJ 110.

MLA 8th ed.

Edelman, Michelle. "The Thrill of Anticipation: Why the Circumvention of Geoblocks
Should Be Illegal." Virginia Sports and Entertainment Law Journal, vol. 15, no. 1,
Fall 2015, p. 110-134. HeinOnline.

OSCOLA 4th ed.

Michelle Edelman, 'The Thrill of Anticipation: Why the Circumvention of Geoblocks
Should Be Illegal' (2015) 15 Va Sports & Ent LJ 110

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VOL.15:1 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL FALL 2015

Note
The Thrill of Anticipation: Why the
Circumvention of Geoblocks Should be
Illegal

Michelle Edelman*

I. INTRODUCTION

Alfred Hitchcock said it best when he said "there is no terror in the bang,
only in the anticipation of it."I What has happened to the concept of patience, of
waiting, of anticipation? Today's culture thrives on instant gratification.
Consumers have become like petulant children who want media content now,
whatever the cost. This sense of entitlement comes at the expense of copyright
holders. In a desire to gain access to content before it is legally available in one's
country, consumers have turned to circumventing geoblocks to satiate their appetite
for immediacy.
Media companies, and film studios in particular in the U.S., make a large
part of their profits on a timed-window release system: movies come out in theatres
before they are available to rent, before they are available to stream. This timed
release includes a geographic component: movies (theatrical, home video, or
streaming) are made available in some countries before others to allow for the
effectiveness of ad campaigns, to tailor to the specific tastes of different markets,
and to license content by territory. This is the model the film studios have been
built on and as copyright holders, have the right to enforce. In order to protect this
right, film studios have relied on companies they license their content to, such as
Netflix 2 , Hulu, and others, to enforce these geographic restrictions. Some of these

J.D., The George Washington University Law School; M.A., Courtauld Institute of Art; B.A.,
Northwestern University.
Biographies - Alfred Hitchcock, History, http://www.history.co.uk/biographies/alfred-hitchcock
thttp://perma.cc/KJH5-YY75] (last visited Apr. 20, 2015).
This paper focuses on Netflix as the main example of a streaming content provider because it is the
most prominent in the marketplace, while recognizing that there are several streaming providers
available (Hulu, Amazon Prime, Vudu, Itunes, etc.).

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FALL 2015 THE THRILL OF ANTICIPATION VOL.15:1

licensees do a better job than others of protecting geographic restrictions with a

technological measure called a geoblock. However, as with any new technology,
there is always a way to circumvent it. As it so happens, there are a wide variety of
third party geoblock circumvention sites such as Unblock-Us 4 whose sole purpose is
to offer paid (or in the rare case free) subscriptions to services that unblock the
geographic restrictions set up by media streaming providers such as Netflix.
Because there are no court rulings in the U.S. specifically addressing the legality of
geoblock circumvention, such circumvention remains a legal grey area.
This paper argues that the circumvention of geoblocks in the context of
streaming media' is illegal because it falls under the statutory language of the
Digital Millennium Copyright Act's (DMCA) anti-circumvention provisions.
Furthermore, geoblocking protects the right of copyright holders to distribute
content in the manner in which they see fit. This paper will explore the basis for the
illegality of the circumvention of geoblocks, the harms caused, which parties should
be liable, and the remedies available. This paper also examines a possible non-
infringing use of geoblock circumvention in the form of a traveler's exemption.
The drawbacks of creating such a DMCA exemption (the renewal petition every
three years and left to the discretion of the Librarian of Congress) make this a
possible yet unreliable exemption.
As will be discussed in detail below, the remedies to curtail the
circumvention of geoblocks are limited. The Motion Picture Association of
America (MPAA) is in the best position to come to a unified position on behalf of
the major Hollywood studios to strategize to minimize geoblock circumvention. As
this paper argues, since the DMCA already makes geoblock circumvention illegal,
there is no need for the MPAA to lobby for legislation to address this issue. A more
immediate and potentially effective solution is for the MPAA to use the tools it has
with the law that is already in place to impose a higher duty on the streaming
content providers to adopt countermeasures to combat the circumvention of
geoblocks. In the licensing agreements between the copyright holder, a Hollywood
studio, and the streaming provider, such as Netflix, there are terms and conditions,
one of which ensures that content is available only to certain countries at certain
times.6 In order to adhere to these licensing agreements, a content provider such as

A geoblock filters content based on the user's IP address.

4 This paper references Unblock-Us as the main example of a third party circumvention site, while
recognizing that there are a myriad number of such sites (HideMyAss!, IPVanish, DNSThingy, etc.).
s This paper only addresses the circumvention of geoblocks in the specific context of streaming
content providers. This paper does not address the legality of the circumvention of geoblocks for other
issues.
purposes such as government censorship or privacy
See Terms of Use, Nettlix, https://www.netflix.com/TermsOfLJse [http://perma.cd/B895-NDV9] (last
updated Sept. 15, 2014).

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VOL.15:1 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL FALL 2015

Netflix must implement geoblocks to restrict access to the copyrighted work it has
access to. This paper posits that while liability for circumvention can be argued for
each possible category of infringer (user, third party circumvention site, and
streaming content provider), the most practical way to curtail the circumvention of
geoblocks is to put further contractual pressure on streaming content providers. A
heightened burden to implement counter-circumvention measures would best
remedy the harm caused to media content creators by the circumvention of
geoblocks. Until "best technological measures available" becomes the industry
standard to combat geoblock circumvention, circumvention will remain a thriving
continuing problem.

II. THE RATIONALE BEHIND GEOBLOCKING

Geoblocking is "the limiting of access to digital content based on the

user's geographical location." This is essentially an extension of digital rights
management (DRM) that enables a copyright holder to control access to his work
and control the release of content. Geoblocks for internet content are an iteration of
the concept implemented in DVDs in the form of region coding. Region coding on
DVDs are put in place to prevent discs from being copied and played in a place
other than the market in which the disc is sold. 8
Hollywood has long had a system of releasing content in different markets
at different times. The reasons for this are multifold. Originally, a primary reason
was the physicality of film. Film came out in large reels that needed to be shipped
to each location, often resulting in staggered theatrical release dates within the U.S.9
The windowing system also worked, and continues to work, to maximize the effect
of promotional campaigns.1o Buzz and social media are components of ad
campaigns, but so are star appearances, which cannot occur in different countries at
the same time." There are also cultural reasons for continuing to stagger release
dates. Film studios make agreements with state and local distribution companies

7Tal Kra-Oz, Geoblocking and the Legality of Circumvention, SSRN I (Nov. 15, 2014),
http://ssrn.com/abstract=2548026 [http://perma.cc/3794-XVE2].
Karl Schaffarczyk, Explainer: What is geoblocking?, The Conversation
(Apr. 17, 2013 12:31AM),
http://theconversation.com/explainer-what-is-geoblocking-13057 [http://perma.cc/EK6X-LG7F].
Angus Kidman, Five Reasons Why Regional Delays Still Exist, Lifehacker (Dec. 1, 2011, 11:30
AM), http://www.lifehacker.com.au/2011/12/five-reasons-why-regional-delays-still-exist/
[http://perma.cc/JUT7-LE4P].
:o Kra-Oz, supra note 7, at 1.
1 Kidman, supra note 9.

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who are more familiar with the specialized markets they distribute to.12 Summer
blockbusters released in the U.S. and Europe are more relevant in the Southern
hemisphere during their corollary summer months.' 3 As technology and platforms
for content developed, Hollywood's staggered releases reacted accordingly to
maximize profits.1 4 As a recent study conducted by KPMG LLP for NBCUniversal
reported, the average time period between a film's theatrical release and its
availability in digital form has decreased since 2000 from an average of 55 months
to an average of 3 months in 2013.15 With the rise of video on demand, and
streaming content providers such as Netflix, the windowing system has started to
collapse, or at least shift, as Hollywood tries to figure out the best strategy for when
and where to release content.' 6
Geoblocking is not a one-sided affair advocated by Hollywood.
7
Governments also have an interest in creating territorial boundaries on the internet.'
As Associate Professor of law Marketa Trimble at the University of Nevada notes,
"governments seek ways to protect their citizens from the influx of certain content,
website operators search for workable solutions to partition cyberspace in order to
both secure compliance with territorially-limited regulation and enforcement and
take advantage of the partitioned cybermarket."' 5 Governments and courts have
9
begun mandating the use of geoblocking tools in order to comply with local laws.'
However, not all governments have been eager or willing to enforce territorial
boundaries in cyberspace. Consumer frustration with geoblocks in Australia and
New Zealand has led the Australian government to advocate for a consumer right to
circumvent geoblocks.20 In July 2013, the Australian House of Representatives

12 Kra-Oz, supra note 7, at 11.

" Id. at 9.
14 Id.
15 KPMG, Film and TV title availability in the Digital Age, KPMG 8 (Sept. 2014),
https://www.kpmg.com/BRIPT/EstudosAnalises/artigosepublicacoes/Documents/Film-and-TV-Tite-
Availability-in-The-Digital-Age.pdf
perma.cc/2U3X-CLQ4].
Ben Fritz, The Business Behind the Show, L.A. Times (Nov. 2, 2010, 4:43 PM),
http://latimesblogs.latimes.com/entertainmentnewsbuzz/2010/1Ilhollywood-studios-grappling-with-
home-entertainment-windows.html [http://perma.cc/58TY-PCTJ].
1 Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22
Fordham Intell. Prop. Media & Ent. L.1 567, 570-71 (2012).
18 Id.
'9 Id. at 571.
20 See Renai LeMay, "Aussies treated like second-class citizens": Choice blasts US TV giants,
Delimiter (July 3, 2013, 12:37 PM), http://delimiter.com.aul2013/07/03/aussies-treated-like-second-
class-citizens-choice-blasts-us-tv-giants/ [http://perma.cc/F9CG-7F5S]; Kra-Oz, supra note 7, at 31;
House of Representatives Standing Comm. on Infrastructure & Commc'ns, At What Cost? IT Pricing
and the Australia Tax, Parliament of Australia 85 (July 29, 2013),
http://www.aph.gov.au/parliamentary business/committees/house of representatives committees?url
=ic/itpricing/report.htm [http://perma.cc/2YPX-NFXK] [hereinafter House of Representatives].

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Standing Committee on Infrastructure and Communications released a report that

detailed price differences between Information Technology sold in Australia
compared to the U.S. 2 1 The report specifically references geoblocking as a method
of unfair price discrimination that creates a monopoly and hinders competition.22
The Committee goes on to recommend an amendment to the Australian Copyright
Act's anti-circumvention provisions to allow for the circumvention of geoblocks to
protect consumers' rights to access products at cheaper overseas prices.2 3 As of
now, these are only Parliamentary suggestions that have yet to be implemented. 24
This radical consumerist approach would have a tough time succeeding in the U.S.
in light of not only Hollywood's strong lobbying powers via the MPAA but also in
light of current law under the DMCA.
As discussed below, the DMCA makes the circumvention of geoblocks
illegal. Geoblocking protects one of the specifically enumerated rights in the
Copyright Act of 1976: "to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by rental, lease, or
lending."2 There is an inherent public interest in supporting an activity that
protects the interests of a copyright holder, as this furthers the goal of "promot[ing]
the Progress of Science and useful Arts,"26 as set forth in the U.S. Constitution.
Geoblocks protect a copyright holder's right to determine how and in which way to
distribute content. The internet has created new problems for the enforcement of
copyright protection where pirated content circulates and reappears faster than it can
be shut down. Geoblocks are but one small subset of copyright protection that
should be enforced.
Beyond the legal reasons why the circumvention of geoblocks should be
illegal, the stronger argument is a societal one: artists need to be encouraged to
create content, which can be done by protecting their rights, and consumers should
be encouraged to move away from their desire for instant gratification. People who
are against geoblocks criticize Hollywood's business model that releases content
regionally instead of globally.2 7 However, circumventing geoblocks is not the right
answer. Copyright holders are hurting in the internet age and protection of their
rights needs to take center stage. The tradeoff for consumers really is not that bad;
after all, the thrill is in the anticipation.

21 House of Representatives, supra note 20, at 85.

22 Id. at 101.
23 Id. at 14, 92, 108.
24 Kra-Oz, supra note 7, at 31.
25 17 U.S.C. § 106(3) (1976).
26 U.S. Const. art. 1, § 8, cl. 8.
27 House of Representatives, supra note 20, at 91.

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111. HARMS CAUSED BY THE CIRCUMVENTION OF GEOBLOCKS

The circumvention of geoblocks harms content creators, which includes

both major Hollywood studios and independent film makers and distributors. The
problem with geoblock circumvention is that the middle man is still making money:
users still subscribe to Netflix while circumventing geoblocks. Ellen Seidler,
journalist and independent filmmaker,2 explains that "for Netflix it can be viewed
as a win, win. Netflix pays for U.S. rights, but forgoes purchasing rights elsewhere
knowing full well its subscribers worldwide can still watch. Netflix profits grow at
the creators' expense." 2 9 Meanwhile, the copyright holders are losing money. The
reality of the media content industry is that films and TV shows cost a hefty amount
to produce. Budgets have tightened, the effects of piracy being felt, as studios have
decreased the number of films they release per year (although 2014 saw the first
increase in the number of major studio films released for the first time in five
years).3 0 Seidler notes that "contrary to the rhetoric promoted by piracy apologists,
financing TV and films productions is not a simple task. In many cases foreign
rights pre-sold as part of financing deals cobbled together to cover the costs of
production. Without such agreements many of the films and TV shows we enjoy
could never be made." 3 1 In order to ensure the continued success and growth of the
media content industry, geoblock circumvention needs to be curtailed to allow
copyright holders to reap the benefits of their labors through territorial licensing
agreements.

IV. THEORIES OF LIABILITY

There are a wide variety of third party geoblock circumvention sites such
32
as Unblock-US whose sole purpose is to offer subscriptions to unblock the
geographic restrictions set up by streaming content providers. The most common

21 See About Vox Indie, Vox Indie, http://voxindie.org/about-2/ [http://perma.cc/36MA-MJHS] (last

visited Apr. 20, 2015).
29 Ellen Seidler, VPN users help Netflix profits grow-while ripping-off filmmakers, Vox Indie
(Feb.
15, 2015), http://voxindie.org/vpn-users-help-netflix-profits-grow-ripping-off-filmmakers-2/
thttp://perma.cc/6PZC-7A4M].
o Motion Picture Ass'n of Am., Theatrical Marketing Statistics 2014, MPAA 21 (Mar. 11, 2015),
http://www.mpaa.org/wp-content/uploads/2015/03/MPAA-Theatrical-Market-Statistics-2014.pdf
thttp://perma.cclYZB9-CTXW].
Id.
32 See Unblock-Us, http://www.unblock-us.com [http://perma.cc/GZQ9-H8FH] (last visited Apr. 20,
2015).

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types of circumvention mechanisms are VPNs, DNS proxies, and browser plugins.
VPNs (Virtual Private Networks) essentially create a tunnel between the user's
computer and a remote server (another computer) located in the US (or other
country of interest). A DNS proxy takes a user request for a website and
substitutes into the request an IP address located in the country of the streaming
provider. Browser plugins work similarly to DNS proxies but are tied to a specific
browser on a user's computer. Both of these methods trick the streaming provider
into believing the user's computer is in the same country as the content provider,
and thus deliver content that would otherwise be restricted.3 4
Unblock-Us uses a VPN system to provide circumvention. According to
the advertisement on their website, "every computer or other Internet-enabled
device has an address. It's made up of numbers, like a street address. Our solution is
brilliantly simple. We give you an address where the content you want is available.
35
It's like moving your computer or other device without actually moving it."
Unblock-Us makes no attempt to hide the service it offers to the public. This
service is circumvention. Geoblocks are in place to control access to copyrighted
work and by using a VPN, DNS, or Browser plugin to trick the streaming provider,
the third party provides a way to circumvent the technological measure in place
without the consent of the copyright owner.
Under the DMCA, there can be little doubt that geoblock circumvention is
illegal. While there has yet to be precedential case law on point in the U.S.3 6
regarding the legality of circumventing geoblocks, there are strong arguments for
liability of the users who do the circumventing, third party services that enable
circumvention, and even content providers who fail to do enough to prevent
circumvention.
Possible theories of liability include: (1) direct infringement and
contributory infringement against third party circumvention sites under the DMCA
§ 1201, which makes it illegal to offer to the public a service that is primarily
designed to circumvent a technological measure, such as geoblocking, that controls
access to the copyrighted work;37 (2) direct infringement against the user for
circumventing the technological measure of geoblocking that controls access to the
copyrighted work; and (3) vicarious liability against the streaming provider, if it

3 Alex Goldstein, What Is The Difference Between A VPN Service And A SmartDNS Router Setup?,
FlashRouters (May 2, 2014), http://www.flashrouters.com/blog/2014/05/02/what-is-the-difference-
between-using-a-vpn-service-and-smartdns-router-setup/ [http://perma.cc/EY6U-RWEV].
34 Id.
3 Unblock-Us, supra note 32.
There is a California central district court case on point that has been settled out of court; see TVB
Holdings, Inc., v. Tai Lake Commc'ns, No. CVl2-09809, 2013 WL 6417330 (C.D.Cal. Oct. 1, 2013).
n 17 U.S.C. § 1201 (1996).

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could be shown that the provider has the potential to control the circumvention of
geoblocks and receives a direct financial benefit from the infringing activity.

A. Third Party Circumvention Sites

1. Direct Infringement

Under the Digital Millennium Copyright Act 17 U.S.C. § 1201, there

would be a cause of action for direct infringement against third party circumvention
sites for the circumvention of a technological measure that effectively controls
access to copyrighted work. In this case, the geoblock put in place by Netflix is a
technological measure, and it controls access to content, the copyrighted work, by
making it possible to only access copyrighted content in certain geographic areas
based on filtering software.
In order to prove liability under the DMCA for a site such as Unblock-Us,
a plaintiff would have to satisfy the liability test enunciated in the statute:

No person shall manufacture, import, offer to the public, provide, or

otherwise traffic in any technology, product, service, device, component, or part
thereof, that-

(A) is primarily designed or produced for the purpose of circumventing a

technological measure that effectively controls access to a work protected under this
tile;

(B) has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a work
protected under this tile; OR [emphasis added]

(C) is marketed by that person or another acting in concert with that person
with that person's knowledge for use in circumventing a technological measure that
3
effectively controls access to a work protected under this title. 8

The main issues under the statute relate to what counts as a "technological
measure," what constitutes "effectively controls access to a work," and what
qualifies as "circumvention of a technological measure."

38 Id.

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a. "[T]echnological [M]easure":

In order for a geoblock to be considered a technological measure that

effectively controls access to the work, it must be a measure that "in the ordinary
course of its operation, requires the application of information, or a process or a
treatment, with the authority of the copyright owner, to gain access to the work."39
Geoblocking falls under this definition because the detection of the location of the
UP address of someone trying to gain access to a streaming provider is an
"application of information" that allows a streaming provider to control access to
the work of the copyright holder. Geoblocking is thus a technological measure that
protects the exclusive right that the copyright owner has to "distribute copies...of the
copyrighted work to the public by sale or other transfer of ownership, or by rental,
lease, or lending." 40

b. "[E]ffectively [C]ontrols [A]ccess to the [W]ork":

There could be some debate about whether a geoblock actually

"effectively [emphasis added] controls access to the work" since right now the
circumvention of geoblocks is relatively easy. But the DMCA threshold for what
constitutes "effective" is low as it simply requires that there be an application of
information that needs to be authorized by the copyright owner.41 In order to access
streaming content, a site such as Netflix filters IP addresses based on location, thus
applying information to restrict content. Just because people have found ways to
circumvent the technological measure does not negate its intended application.

c. "[C]ircumvention of a [T]echnological [M]easure":

According to the DMCA, to circumvent a technological measure means to

"descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without the authority
of the copyright owner."42 Law professor David Fewer of University of Ottawa
"doubts that the use of a VPN qualifies as the breaking of a digital lock on a device

3 Id. at § 1201(a)(3)(B).
40
Id. at § 106.
41 See id. at § 1201(a)(3)(B).
42 Id. at § 1201(a)(3)(A).

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designed to prohibit unauthorized copying, since it merely cloaks a user's IP

address."4 3 However, nothing in the statutory language of the DMCA limits the
definition of a technological measure to a digital lock. As discussed supra,
geoblocks fall under the statutory definition of a technological measure. And as
such, a service that bypasses this block violates the circumvention provision. Sites
such as Unblock-Us do just this by providing a service that gives users an alternate
IP address from a different country that allows users to gain access to content that
would otherwise be restricted. This service thus bypasses the geoblocks that content
streaming providers such as Netflix have in place to protect copyrighted work.
To succeed in a claim against a service provider such as Unblock-Us, a
plaintiff would only have to prove one of the three prongs of the DMCA test as they
are disjunctive clauses. Under the first prong, the plaintiff would have to show that
the site "manufacture[s], import[s], offer[s] to the public, provide[s], or otherwise
traffic[s] in technology, product service, device, component, or part thereof, that is
primarily designed or produced for the purpose of circumventing a technological
measure that effectively controls access to a work" protected by copyright.4 4 As
explained above, a site such as Unblock-Us offers to the public, through its website,
a service that allows the user to circumvent a geoblock by providing the user with
an alternate IP address that comes from a different geographic area. This allows the
user to access content that is restricted in that geographic area because the copyright
holder has chosen not to make it available. Thus, Unblock-Us provides a service
that violates 17 U.S.C. § 120 1(a)(2)(A) of the DMCA.
Under the second prong of the DMCA test, a plaintiff would have to show
that Unblock-Us' service "has only limited commercially significant purpose or use
other than to circumvent a technological measure that effectively controls access to
a work protected under this tile." 4 5 Unblock-Us' sole purpose is to provide alternate
IP addresses to subscribers through a Virtual Private Network with the aim of
providing the user access to content that is not available in his geographic area.
46
Unblock-Us offers a free week trial period and then charges for its services. The
issue is not whether Unblock-Us' circumvention service is free or not; the issue is
whether providing alternate IP addresses through a VPN to access restricted content
has a commercially significant purpose other than to circumvent a geoblock. The

43 Shane Dingman and Jeff Gray, What's a VPN, are they legal and does Netflix care Canadians use
them?, The Globe and Mail (Jan. 9,2015), http://www.theglobeandmail.com/technology/what-is-a-
vpn-are-they-legal-and-whos-not-happy-canadians-are-using-them/article22363040/
http://perma.cc/S6QG-HJPN].
17 U.S.C. § 1201(a)(2)(A).
4 Id. at § 1201(a)(2)(B).
4 See Unblock-Us, supra note 32.

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answer in this specific instance is no. Circumventing geoblocks is Unblock-Us'

sole purpose and indeed their whole existence depends on the circumvention of
geoblocks. Therefore there is no alternate commercially significant purpose
Unblock-Us provides.
Under the third prong of the DMCA test for liability, a plaintiff would
need to show that the service offered to the public by a site such as Unblock-Us is
"marketed by that person or another acting in concert with that person with that
person's knowledge for use in circumventing a technological measure that
effectively controls access to a work protected under this title." 17 U.S.C. § 1201
(a)(2)(C). Unblock-Us actively advertises through its website the circumvention
services it provides, violating 17 U.S.C. § 1201 (a)(2)(C).
While there are no decided cases in the U.S. that deal with the issue of the
circumvention of geoblocks, the case of TVB Holdings, Inc., v. Tai Lake
Communications,4 7 which has settled out of court, presents a perfect case study for
the direct liability of a third party geoblock circumvention service under the DMCA.
TVB filed a motion for a permanent injunction against Tai Lake Communications
for manufacturing and marketing a device that circumvents geoblocks.48 TVB is a
wireless commercial television station in Hong Kong that produces Chinese
language programming. Within China, TVB programs are displayed through free
broadcast television and many of the copyrighted works are accessible to Hong
49
Kong viewers through their website. In the U.S., however, TVB programs are
only available through a subscription with one of TVB's distribution partners such
as DISH Network, Time-Warner Cable, Comcast Cable, AT&T U-Verse or Verizon
FiOS."
Tai Lake Communications produces, markets, and sells a streaming device
called a "TV Pad" to users in the U.S. as a way to access TVB programming by
circumventing the access protection measure of geoblocking. "Through the use of a
proxy server or virtual private network, the TV Pad mimics a Hong Kong IP
address, allowing the user to stream direct feeds of TVB programming from the
Hong Kong server. The TV Pad also provides time-delayed viewing and video-on-
demand viewing of TVB programming."a TVB's motion for injunctive relief
explained that the TV Pad is a circumvention device that violates the DMCA. 5 2

47 TVB Holdings, Inc., v. Tai Lake Commc'n Inc., No. CVI2-09809, 2013 WL 6417330 (C.D.Cal.
Oct. 1, 2013).
48 Complaint and Demand for Jury Trial, Tai Lake Commc'n Inc., No. CV 12-098909, 2012 WL
5903313 (C.D.Cal. Nov. 15, 2012).
49 Id.
5o Id.
51
Id.
52 Motion for Injunctive Relief, Tai Lake Commc'n Inc., No. CV 12-09809,
2014 WL 2999865,

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Similarly, a website, such as Unblock-Us that provides the same service as a TV

Pad would also be in violation of the DMCA.

2. Contributory Infringement

While third party circumvention sites should be directly liable for

infringement, in the event that a court does not agree, relief might also exist under
the theory of contributory infringement. Sites such as Unblock-Us that circumvent
geoblocks may be contributorily liable for copyright infringement by marketing a
product or service that "induces, causes, or materially contributes to the infringing
conduct of another."53 As the court in Gershwin explained, the two elements of
contributory infringement are: (1) knowledge of the infringing activity; and (2)
material contribution to the activity. 54 To prove that sites such as Unblock-Us had
knowledge of the infringing activity, a plaintiff would first have to establish that the
circumvention of geoblocks by users constitutes copyright infringement. The
arguments for this would be the ones mentioned supra involving proof that the
circumvention of geoblocks is a service that bypasses technological measures in
place to protect access to copyrighted work. Once a court recognizes this, then a
plaintiff would merely have to show that sites such as Unblock-Us materially
contribute to a user's circumvention of geoblocks.
Sites such as Unblock-Us purposefully advertise to users the use of their
technological services to go around geoblocks. They provide the tools to a user to
circumvent, thus materially contributing to the direct infringement of the user. In
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Supreme Court held that
one who distributes a device with the object of promoting its use to infringe
copyright, as shown by clear expression or other affirmative steps taken to foster
infringement, is liable for the resulting acts of infringement by third parties.5 5 As
applied here, a site such as Unblock-Us provides the service of geoblock
circumvention through its website which promotes users to commit acts of
copyright infringement by clicking a link that allows them to circumvent geoblocks.
The affirmative steps that sites such as Unblock-Us take to foster infringement are
advertisement of their circumvention services and actually providing said services.
Thus, sites such as Unblock-Us satisfy the two-pronged test for contributory

(C.D.Cal. Feb. 20, 2014).

5 Gershwin Publ'g Corp. v. Columbia Artists Mgmt, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
54 Id.
s5 Metro-Goidwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005).

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infringement.

B. The User

Users would be directly liable for infringement for circumventing the

technological measure of geoblocking that controls access to the copyrighted work.
The DMCA states that "no person shall circumvent a technological measure that
effectively controls access to a work protected [by copyright] ."In order to succeed
in a claim against a user, a plaintiff would need to show that: (1) geoblocking is a
technological measure that effectively controls access to copyrighted work; and (2)
that the user circumvents this measure.
The DMCA defines a technological measure that effectively controls
access to a copyrighted work as something that "in the ordinary course of its
operation, requires the application of information, or a process or a treatment, with
the authority of the copyright owner to gain access to the work."57 This broad
language encompasses the technology surrounding geoblocking. Geoblocking is a
way for a copyright owner to restrict access to the work by putting up territorial
restrictions.
Next, a user clearly circumvents the technological measure of geoblocking
by using a service such as that provided by Unblock-Us. As noted supra, the
DMCA's definition of the circumvention of a technological measure includes "to
avoid, bypass, remove, deactivate, or impair a technological measure, without the
authority of the copyright owner."5 8 Tricking a server into thinking the IP address
trying to access it is in the same geographic location is a method of bypassing a
measure of geographic detection set up in place at the behest of the copyright
owner. A user who uses a site such as Unblock-Us to avoid geographic restrictions
does so without the copyright owner's consent in violation of the DMCA.
While there would be a strong cause of action against each individual user
of a site such as Unblock-Us, the practicality of stopping every user would be near
impossible. It would therefore make more sense to sue the site providers under a
theory of direct liability under the DMCA or a theory of contributory infringement.
As the Supreme Court explained in Grokster, "when a widely shared service or
product is used to commit infringement, it may be impossible to enforce rights in
the protected work effectively against all direct infringers, the only practical

5 17 U.S.C. § 1201.
5 Id. at § 1201(a)(3)(B).
" Id. at § 1201 (a)(3)(A).

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alternative being to go against the distributor of the copying device for secondary
liability."s9

C. The Streaming Provider

1. Vicarious Liability

A streaming provider such as Netflix could be liable for vicarious

copyright infringement if it: (1) has the right and ability to supervise the infringing
60
activity; and (2) obtains a direct financial benefit from the infringing activities.
The first prong of this test, usually called the control prong, has been interpreted by
courts to require a showing of actual control or potential control and usually turns
on the relationship between the defendant and the direct infringer.6 In the situation
before us, a streaming provider such as Netflix does not have actual control over the
infringing activity because the streaming provider is not directly working with sites
such as Unblock-Us. However, an argument could be made that Netflix has
potential control over these circumvention services and hence control over the direct
infringing activity because Netflix has the ability to counteract these circumvention
sites through security measures. Streaming content providers such as Netflix
currently work with geo-filtering vendors to stop geoblock circumvention. While a
streaming content provider's contract with copyright holders imposes a duty to
enforce geoblocks, sites such as Netflix could be taking heightened measures to
counteract geoblock circumvention. Because sites such as Netflix have the
capability of stopping, or at least significantly reducing geoblock circumvention, it
is possible that a court would view this potential control to stop infringing activity
as enough to satisfy the control prong of the vicarious liability test.
The second prong of vicarious liability involves a direct financial benefit
to the streaming provider. There could be an argument that streaming providers
are actually receiving a direct financial benefit from users who circumvent their
geoblocks because whether a user accesses the streaming content from the U.S. or
the UK (or anywhere else), the user is still paying for access to the site. An
infringing user in the UK who uses a site such as Unblock-Us to gain access to a
U.S. version of Netflix still pays for a Netflix subscription. The only thing the user

s Grokster, 545 U.S. at 919.

6 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001).
Charles S. Wright, Actual Versus Legal Control: Reading Vicarious Liability for Copyright
Infringement into the Digital Millennium Copyright Act of 1998, 75 Wash. L. Rev. 1005, 1012 (2000).
62 Napster, 239 F.3d at 1023.

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is changing with the circumvention of the geoblock is the content that the user can
access. The user still needs a Netflix account to get content. Therefore, when a user
circumvents the geoblock, a streaming provider receives additional revenue from
the infringing activity. This benefit could suggest why streaming providers are not
more active in implementing further technological security measures to stop the
circumvention of geoblocks. There is not enough of a financial incentive for
companies such as Netflix to further invest in counter measures to fend off the
circumvention of geoblocks. However, courts might not agree that this qualifies as
a financial benefit. In Viacom v. YouTube, the court explained that "a service
provider conducting a legitimate business would not be considered to receive a
'financial benefit directly attributable to the infringing activity' where the infringer
makes the same kind of payment as non-infringing users of the provider's
service."63 While the court analyzes this prong in relation to an ISP (Internet
Service Provider), which Netflix is not, it is possible that a court would follow the
same line of reasoning with regards to Netflix because at issue in both cases is
vicarious liability. If a court were to follow Viacom's reasoning, then Netflix would
not be liable for vicarious liability precisely because users who circumvent
geoblocks still pay for a Netflix subscription. Thus, the arguments against a content
streaming provider for vicarious liability are not entirely persuasive and would
likely not be an effective means of curtailing geoblock circumvention.

2. Contributory Infringement

A streaming provider such as Netflix would likely not be liable for

contributory copyright infringement under the DMCA because Netflix does not
affirmatively induce or cause the circumvention ofgeoblocking. Nevertheless, one
could make an argument that sites such as Netflix's lack of counter-circumvention
measures actually induces infringement. By not doing enough to stop the
circumvention, streaming providers such as Netflix in a sense encourage the
circumvention. Streaming providers know that users circumvent geoblocks and yet
do nothing, or little, to stop them. In Grokster, the Supreme Court explained that
lack of affirmative steps could, in certain circumstances, amount to inducement. 64
In that case, "neither respondent attempted to develop filtering tools or other
mechanisms to diminish the infringing activity using their software. While the Ninth
Circuit treated that failure as irrelevant because respondents lacked an independent

6 Viacom Int'l Inc., v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010).
64 Grokster, 545 U.S. at 913,
916.

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duty to monitor their users' activity, this evidence underscores their intentional
65
facilitation of their users' infringement." This situation is not exactly the same as
the one before us as sites such as Netflix are not the ones providing the
circumvention technology. Arguably, Netflix's lack of filtering to stop
circumvention facilitates the infringement. However, because Netflix is not the one
providing the circumvention technology, a court might have trouble finding
inducement. Thus, while Netflix may induce infringement by its lack of counter-
circumvention measures, a court will likely not find this a strong enough argument
to hold Netflix liable for contributory infringement.

V. LEGALITY OF GEOBLOCK CIRCUMVENTION

A. Should Geoblock Circumvention be Illegal?

While the DMCA makes the circumvention of geoblocks illegal, the

practical realities might make the enforcement of banning circumvention difficult.
As Tal Kra-Oz points out in his article Geoblocking and the Legality of
Circumvention, geoblocking might actually encourage piracy because consumers
who would be perfectly happy to pay to get content immediately will be drawn to
piracy because of the barriers put in their way. Kra-Oz believes geoblocking will
become ineffective because of increasing demand for content and spreading
technological literacy that enables circumvention. He further argues that content
providers might actually profit if they changed their distribution strategies by
decreasing their reliance on territoriality.6 While Kra-Oz advocates for getting rid
of geoblocks, a large part of his reasoning relies on the ineffectiveness of geoblocks
and consumers' belief that "there is no longer any reason to wait months for the
69
season finale of a much-loved television show to make its way to one's shores."
But there should be a reason to wait: copyright owners have the right to release
content at their discretion. And as to the problem of the ineffectiveness of
geoblocks, the remedies section below explains how a contractual duty could help
solve this issue.

65 Id.
6 Kra-Oz, supra note 7, at 12.
61 Id. at 27.
68 Id.
6 Id. at 32.

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B. Creating a DMCA Anti-circumvention Exception for Possible Noninfringing

Uses

There are some possible non-infringing uses of geoblock circumvention in

the entertainment context. For example, a U.S. citizen on vacation abroad or a
student studying abroad, who is paying for a U.S. Netflix account, and yet gets a
message along the lines of "this content is unavailable in your region," should be
able to access his or her U.S. content while abroad, despite the geoblock. One
solution would be to create a DMCA anti-circumvention exception for legitimate
geoblock circumvention. An interesting take on creating such an exception is
70
Marketa Trimble's proposition of a digital passport. She explains that this digital
passport could be linked to a user's permanent IP address or domicile, which would
then enable these users to access content legally available to persons of that place of
residence regardless of their transitory physical location. 7 1 Trimble likens digital
travel to physical travel: when one physically travels abroad, a passport is required.
Similarly, to access digital content abroad, internet sites could require a digital
passport which uses one's permanent residence or domicile to determine access to
content.72 Trimble argues that "the law could make it illegal to change or reroute an
73
IP address because that act would be equivalent to forging a physical passport."
This provides a different justification for why the circumvention of geoblocks
should be illegal. Though a novel argument, the DMCA already has the language in
place to make geoblock circumvention illegal. Nevertheless, Trimble's proposal is
an interesting one in which national laws follow citizens where they travel, thereby
enforcing territorial boundaries in the digital context. 74
The concept of a traveler being able to access his country of origin's
content is not novel and actually already exists to some extent in practice. A site
called "My Expat Network" currently offers a subscription service to users to access
media content in the U.S., UK, Canada, and Australia, by providing a user with a
geo-specific IP address.75 The site does not seem to require proof of nationality to
register for the service and it allows access to content from these four countries.
Therefore, in practice, it perpetuates the problem of allowing users to circumvent
geoblocks to gain access to content they are not legally entitled to. However, a

70 Trimble, supra note 17, at 649.

7 Id. at 649-50.
72 Id. at 650.
7 Id. at 650-5 1.
74 Id. at 650.
7s My Expat Network, http://www.my-expat-network.com [http://perma.cc/92EE-RKUA] (last visited
Apr. 20, 2015).

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more narrowly tailored version of the My Expat Network site could achieve the
proper balance. The use of a digital passport could make a user prove country of
residence in order to access content while abroad.
Under the DMCA, the Librarian of Congress can create exemptions to the
anti-circumvention provisions of § 1201 for noninfringing uses of copyrighted
76
works. One such exemption could be for U.S. citizens accessing U.S. content
while traveling abroad. However, there are certain problems with such an
exemption. First, there might be significant hurdles in getting the exemption. The
Librarian of Congress makes the determination to grant the exemption based on the
factors set out in 17 U.S.C. § 1201 (a)(1)(C):
(i) the availability for use of copyrighted works;
(ii) the availability for use of works for nonprofit archival, preservation,
and educational purposes;
(iii) the impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;
(iv) the effect of circumvention of technological measures on the market
for or value of copyrighted works; and
77
(v) such other factors as the Librarian considers appropriate.

The best argument for granting the exemption would fall under (iv) and
(v): that the circumvention in the limited circumstance of a traveller abroad
accessing his Netflix account does not have a negative impact on the market or
value of the copyrighted work. In these cases, travelers would already have
subscriptions to Netflix accounts. Therefore, they would not harm the market for
the work because they are already paying for the content. In this way, cybertravel
could be equated to physical travel and would be protected for the same reasons we
protect physical travel: encouraging people to travel to learn about other cultures
and practices, understanding of other societies, enriching learning.8 Or, on a more
proprietary level, people should have access to content they have paid for.
Getting the Librarian of Congress to grant this exemption would only be
the first step in a convoluted process. The second problem is that these exemptions
only last three years.7 9 Every three years, one has to reapply for the exemption.
Therefore, this would create uncertainty about the legality of geoblock
circumvention for travelers. One year it could be legal, the next it might not be. In

76See 17 U.S.C. § 1201(a)(1).

n Id. at § 1201(a)(1)(C).
7 Trimble, supra note 17, at 572.
7 17 U.S.C. § 1201(a)(1).

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addition, even if one successfully continued to get the Librarian of Congress to

grant the exemption every three years, trafficking in the circumvention technology
would still be illegal. According to the DMCA, "the prohibition contained in
subparagraph (A) shall not apply to such users with respect to such class of works
for the ensuing 3-year period."80 Provision (A) states that "No person shall
circumvent a technological measure that effectively controls access to a work
protected under this title."" This means that the exemption would apply only to the
person doing the actual circumventing. So the traveler abroad could circumvent the
geoblock to access his Netflix account but the problem remains that the site
providing the method of circumvention would still be liable. The exemption,
nevertheless, could still work if users learned how to circumvent the geoblock
without using a third party site. This is not the most ideal situation. Therefore,
creating an anti-circumvention exception for geoblocks might make sense only in
theory rather than in practice.

VI. REMEDIES

A. Damages Available

Under § 1203 of the DMCA, a court may grant civil remedies for the
circumvention of technological measures that effectively control access to a
copyrighted work. This includes monetary damages and equitable remedies such as
injunctions.8 2 In addition, §1204 of the DMCA provides for criminal penalties for
those who "willfully and for purposes of commercial advantage or private financial
gain"8 violate § 1201 or § 1202 of the DMCA. One can be fined for such
violations and/or get a prison sentence for up to ten years.84 These remedies are
similar to those provided for in the Copyright Act of 1976. Depending on which
party a copyright holder chooses to go after, a different remedy will be applicable.
Civil fines would make sense against the individual users of third party
circumvention sites. Civil fines could also be imposed on the streaming content
providers such as Netflix. The powerful remedies of both injunctions and criminal
sanctions could be imposed on third party circumvention sites such as Unblock-Us
because these sites "willfully" provide circumvention services for "financial gain."

ld. at § 1201(a)(1)(D).
Io
Id. at § 1201(a)(1)(A).
82 Id. at § 1203 (2010).
83 17 U.S.C. § 1204 (2010).
8 Id.

8s Id.

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B. Solutions

A copyright holder has the exclusive right to decide how, when, where,
and if to distribute content. The circumvention of geoblocks violates this right.
With the expansion of the internet, protecting copyright holders' interests has
become exponentially difficult. If society fails to protect these rights, artists and
authors will lose incentives to create, or at least to share their creations with the
public. As provided for in the Constitution, "Congress shall have Power... To
promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
,,86
Discoveries. In order to fulfill this mission of promoting the arts, we need to
continue to offer artists and authors protection of these rights. Enforcing geoblocks
is one small way to protect a copyright owner's distribution right.
The challenge in stopping the circumvention of geoblocks is figuring out
the most effective way to do this. Going after the individual user of sites such as
Unblock-Us is not only impractical and ineffective but near impossible. This
presents the classic whack-a-mole problem so common with internet copyright
infringement: when one infringer is shut down, another infringer pops up
somewhere else. Therefore, while there would be a cause of action for direct
infringement against the users of third party circumvention sites under the DMCA,
pursuing this course of action would not be the most beneficial. This leaves the
third party sites such as Unblock-Us and the streaming content providers such as
Netflix.
From a practical standpoint, shutting down third party sites such as
Unblock-Us would be an easier target than attempting to stop every individual user
of these sites. However, this strategy could still present a whack-a-mole problem,
though on a less massive scale. These sites are clearly in violation of the plain
language of the DMCA by providing services that circumvent the technological
measure of geoblocking that controls access to copyrighted work. Therefore, the
MPAA, representing copyright holders, could sue these sites and hope for a court
ruling in their favor.
In conjunction with this effort, the MPAA could also sue streaming
content providers such as Netflix for a breach of contract for not adhering to the
terms of the licensing agreements from the major Hollywood studios. If the MPAA
could get a court to declare Netflix's lack of counter-circumvention measures
vicarious copyright infringement, this would set an example and induce other

8 U.S. Const. art. I, § 8, cl. 8.

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similarly situated streaming content providers to take affirmative steps to decrease

geoblock circumvention. However, because of the licensing and contractual
relationship between the Hollywood studios and the streaming providers such as
Netflix, it would make more sense to work with the streaming providers to shut
down third party circumvention sites, rather than suing them.
Copyright holders need to incentivize streaming content providers such as
Netflix to enforce geoblocks and reduce circumvention by enacting counter
measures. Just as evasion of geoblocks exists, so do tools to detect evasion.8 As
Trimble notes, "providers of geolocation tools are constantly searching for ways to
eliminate evasion and identify true IP addresses to determine the accurate
geographic locations of Internet users." 88 Streaming content providers thus have the
ability to implement counter-circumvention measures. A content provider could
stop licensing content to sites such as Netflix unless they complied with a certain
threshold percentage of anti-circumvention measures. This would mean that a site
such as Netflix would need to provide data to a copyright holder showing that they
successfully stopped a certain amount of geoblock circumvention by employing
further technological measures. If the streaming content provider could not show a
satisfactory amount of counter-circumvention, then the content provider, the
Hollywood studio, could stop licensing some or all of its content to that streaming
content provider. This is a model that would be an alternative to suing the
streaming content providers and could prove more effective as a means of
incentivizing their support and help in stopping geoblock circumvention.
But perhaps the most effective means of curtailing the circumvention of
geoblocks would be to impose a more exacting contractual obligation on streaming
content providers to adopt counter-circumvention measures. Most new media
contracts between copyright holders and streaming content providers already
contain a provision that imposes a duty on sites such as Netflix to use geo-filtering
technologies to prevent content from being accessed from outside the licensed
territory.89 A recent TorrentFreak article claims to have had access to a copy of the
licensing agreement between Sony Pictures and Netflix which imposed a duty on
Netflix to "use such geolocation bypass detection technology to detect known web
proxies, DNS based proxies, anonymizing services and VPNs which have been
created for the primary intent of bypassing geo-restrictions."o If this report is based

8 Trimble, supra note 17, at 604.

8 Id.
James D. Nguyen, Drafting Content Licensing Provisions for Evolving Media, 32 L.A. Law. 20, 23
(May 2009).
9o Ernesto Van der Sar, Netflix Cracks Down on VPN and Proxy "Pirates", TorrentFreak (Jan. 3,
2015), https://torrentfreak.com/netflix-cracks-down-on-vpn-and-proxy-pirates- 1501031

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on the actual licensing agreement in place, it suggests that Netflix must use an
"industry standard geolocation service" to counteract circumvention." While this
geofiltering provision sets a minimum for sites such as Netflix to comply with, it
does not go far enough. There needs to be a "best technological measures
available" standard established in contract language to counter-circumvention.
Without this high standard, geoblocks will remain largely ineffective. Attorney
James Nguyen explains that "for the technology platform, it will not want to agree
to use the best DRM and geofiltering systems available at any given time but will
instead prefer to use what is acceptable or customary in the industry." 92 While
imposing a higher burden of using the best technologically available measures to
counter-circumvention might be preferable, Nguyen may be right both from the
perspective of the streaming provider and legal standards. Though not a provision
of the DMCA, § 512 of the Copyright Act of 1976 that deals with safe harbor
provisions for internet service providers, uses the language of "standard
technological measures." 93 The statute defines "standard technological measures"
as:
"technical measures that are used by copyright owners to identify or
protect copyrighted works and-

(A) have been developed pursuant to a broad consensus of copyright

owners and service providers in an open, fair, voluntary, multi-industry
standards process." 94

Thus, a first step towards clamping down on geoblock circumvention

would be to establish an industry standard in Hollywood for what constitutes
counter-circumvention measures. The MPAA is in the best position to delineate this
standard which could then be incorporated into contracts between copyright holders
and streaming contract providers.
Netflix currently has measures in place to deal with geoblock
circumvention, but these measures fall short of being effective. Netflix's Terms of
Use explain that "Netflix will use technologies to verify your geographic
location." 95 The terms do not explain what these technologies are, but they most
likely consist of a filtering system to determine geographic locations based on IP
addresses. Netflix goes on to wam users that "you also agree not to: circumvent,

[http://perma.cc/2ZB9-W87D].
91 Id.
92 Nguyen, supra note 89, at 23.
93 17 U.S.C. § 512(i)(2) (2010).
9 Id.
9s Terms of Use, supra note 6, at c.

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remove, alter, deactivate, degrade or thwart any of the content protections in the
Netflix service."96 Through this, Netflix acknowledges its duty to protect the
geoblocks it has put in place. But putting the duty on users not to circumvent
geoblocks is not good enough. First, no one (except law students) reads terms of
service. Second, even if someone reads the terms of service, a warning not to
circumvent a technological measure will likely not stop someone who is planning
on circumventing. The warning could be effective for the rare person who is
concerned with falling within the bounds of what is legal and is considering
circumvention. The number of people a terms of service warning will deter is few.
Therefore, Netflix needs to be doing more to combat geoblock circumvention.
There have been conflicting reports recently on Netflix's actions in regards
to counter-circumvention measures. According to an article on TorrentFreak,
"Netflix is reportedly testing a variety of blocking methods. From querying the
user's time zone through the web browser or mobile device GPS and comparing it
to the timezone of their IP-address, to forcing Google's DNS services in the
Android app." 97 Apparently the Android app makes it harder for users to use DNS
location unblockers.9 8 Sites such as Unblock-Us have had trouble circumventing
geoblocks through the Android app since Netflix has reportedly "hardcoded
Google's DNS servers."9 In response to reports of Netflix cracking down on
geoblock circumvention, Netflix released a statement that the circumvention of
geoblocks has always been against its terms of service but did not deny or confirm
that it was changing its policy on how it treats VPNs.1oo While there is some
controversy over what Netflix is doing to combat circumvention, there is clearly
something in the works and large scale awareness of the massive problem of
geoblock circumvention. Right now, circumvention sites do not seem too
concerned about the alleged Netflix crackdown. According to PcPro author Adam
Shepherd, "TorGuard, the VPN service that initially reported the problems, has
pledged to develop simple workarounds if and when the blocks are fully
implemented, along with competitors such as Unblock-Us."1oI In order to combat

96 Id. at e.
9 Van der Sar, supra note 90.
9 Id.
Jan Willem Aldershoff, Nettlix making effort to block geoblock circumvention, Myce (Dec. 30,
2014, 7:36 PM), http://www.myce.com/news/netflix-making-effort-to-block-geoblock-circumvention-
74033/ [http://perma.cc/XF7U-GN78].
100 Mike Blake, Netflix upholds geoblocking rules amid reports of crackdown, CBC News (Jan. 5,
2015), http://www.cbc.ca/news/business/netflix-upholds-geoblocking-rules-amid-reports-of-
crackdown-1.2889895 [http://perma.cc/JG3V-68XU].
1ol Adam Sheperd, Netflix may start blocking VPNs - should you be worried?, PC Pro (Jan. 5, 2015),
http://www.pcpro.co.uk/computing/1 000220/nettlix-may-start-blocking-vpns-should-you-be-worried
[http://perma.cc/7FTF-5RHY].

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such sites, Netflix needs to implement more stringent technological measures to

counter-circumvention.
Current measures adopted by Netflix are a step in the right direction, and
copyright holders can continue to pressure streaming sites to use best available
technological measures to counter geoblock circumvention. This provides a
concrete and enforceable method of combatting circumvention. Courts are much
more comfortable with settling breach of contract claims, which is what would
result from a streaming site's failure to adopt appropriate counter- circumvention
measures, rather than having the burden of setting new precedent in the landscape of
copyright infringement on the internet. Imposing stricter contractual obligations on
streaming content providers to combat geoblock circumvention is a step towards
protecting a copyright holder's right of distribution in an era where protecting
copyrighted works has become increasingly difficult.

VII. CONCLUSION

The circumvention of geoblocks is problematic because it harms content

creators. Copyright holders have the right to decide how to distribute content and in
order to encourage artists to continue to create content, we need to protect what they
share with the world. Under the DMCA, the circumvention of geoblocks is illegal
because the activity circumvents technological measures that effectively control
access to a copyrighted work. Because the statutory framework exists to sue for the
circumvention of geoblocks, the MPAA, on behalf of film studios, could sue sites
such as Unblock-Us that provide circumvention services. However, litigation is not
always the best answer. In the case of geoblock circumvention, a better remedy to
the problem is to impose a higher contractual burden on streaming content providers
such as Netflix to implement more rigorous counter-circumvention measures. Only
after an industry standard of "best technological measures" becomes the norm can
streaming providers and content creators work together to combat geoblock
circumvention. Though a traveler's exemption to the circumvention of geoblocks
would provide an ideal balance between a consumer's right to access content he has
paid for and the copyright holder's distribution right, this proposed exemption
would be unstable in light of the current DMCA procedure for passing exemptions.
At its core, the circumvention of geoblocks is about consumer appetite and
protection of copyright. The fix needs to come from within the media industry

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itself, but in the meantime, consumers can take a moment to pause and remember
the thrill of anticipation.

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