Netflix, Hulu streaming illegal in SA

Using services such as virtual private networks (VPNs) or a DNS-based “un-blocker” such as UnoTelly to access Netflix, Spotify, and other online content services from South Africa is copyright infringement.

This is according to Nicholas Hall from Michalsons Attorneys, who was answering MyBroadband’s questions about bypassing region restrictions put in place by online content services such as Netflix.

The problem isn’t that you are fooling these services into believing that you are from the United States. Using a tool such as UnoTelly or a VPN is perfectly legal so long as you use them for legal purposes, Hall said.

However, it is illegal to access content outside the region that it has been licensed for, Hall said.

This is because you are using copyrighted material outside the terms of its license, which is copyright infringement. Or, in the vernacular, “piracy”.

Hall is not the only South African technology lawyer who is of this opinion. Director of Web Tech Law, Paul Jacobson, made a similar argument on the firm’s blog last year.

“Having the capability to access Netflix’s content doesn’t equate to permission to access it. If you lack permission to access the Netflix content you lack a license to access that content and unlicensed or unauthorised access to the Netflix content is copyright infringement,” Jacobson said.

“In legal terms, this is tantamount to torrenting the content,” he added.

When Hall was asked whether it would be accurate to say that SA law regards bypassing region locks and simply downloading a movie using BitTorrent or Usenet as the same offence, Hall said that different sections of the Copyright Act apply.

“Strictly speaking it isn’t the same offence, but it amounts to the same thing,” Hall said.

Hall explained that such infringement isn’t criminal, but added that rights holders could sue offenders if they wanted to, though he doesn’t believe they would.

“In my personal opinion, I think the rights holders would prefer that people access their content this way, where they will derive some revenue, as opposed people just downloading it without paying,” Hall said.

The services themselves could also hold you in breach of contract as circumventing their region restrictions is against their terms of service, but Hall said that they are unlikely to take action.

“In most cases you are paying for the services, such as in the case of Netflix and HuluPlus, and so are a revenue stream,” Hall said.

If neither the rights holders nor the platforms themselves care if the region restrictions are bypassed, should South Africans worry that they are technically breaking the law?

Netflix not available in your country
Netflix not available in your country

MultiChoice, StarSat may take action

“To my mind the party that would be most interested in taking action are the broadcasters in South Africa, namely StarSat (neé TopTV) and MultiChoice,” Hall said.

This is because people are unlikely to use pay TV broadcast services to access content if they are signing up to online video services.

When asked about this previously, MultiChoice said that it “works closely with the rights suppliers to prevent this kind of illegal activity.”

MultiChoice said that the studios and content producers who own the rights to the content sell it to them and other TV providers for our territory at a certain price.

“We are not able to take this content to regions outside of those that we have licensed and the studios agree to not deliver those movies and TV series in our territory directly via the Internet,” MultiChoice said. “This is a business model that is universally accepted.”

Piracy promotes a culture of fraud and corruption

MultiChoice also responded to a recent MyBroadband article comparing the cost of uncapped ADSL to DStv Premium in South Africa, arguing that the two are not really in the same league.

“Whether consuming legal or illegal Internet sourced content, the size of the offering does not compare with the length and breadth of the DStv Premium offering, as is suggested,” MultiChoice added.

The resulting quality of Internet-sourced content also isn’t comparable today in the SA market, MultiChoice said, due to poor Internet speeds and congestion.

Using pirated media as an alternative to DStv also has the unhappy side-effect of discouraging investment in local content, and robs international content producers of revenue, MultiChoice said.

“Piracy promotes a culture of fraud and corruption and one should always look at the bigger picture, rather than focusing purely on our individual needs, as your article seems to do,” MultiChoice said.

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Netflix, Hulu streaming illegal in SA