Media Without Borders?

As many are already aware, October 2012 saw a new anti-piracy law taking effect in Japan. Prior to this law taking effect, penalties for piracy were limited only to those who illegally upload content, but now, it’s been extended to downloaders. Uploaders still face harsher penalties, but now downloaders can be subject to penalties of up to two years in prison or up to two million yen in fines.

Photo by Percival Constantine

Photo by Percival Constantine

Foreign media in Japan can sometimes be difficult to come by, especially in regards to television shows and non-blockbuster movies, and while I have no data to back this up, my assumption would be most piracy of foreign media in Japan occurs more because of a lack of access than an unwillingness to pay. Because of this, I wrote a two-part article discussing how to set up a virtual private network (VPN) and how to use gift cards in order to access—and pay for— content available in other countries that is not available in Japan. It received a number of responses, both positive and negative.

Amidst these comments were some that made me rethink the legality of these services. For that, I offer my sincerest apologies. It was never my intention to present information that could be misleading or result in any sort of liability. In fact, what I wanted to do was offer people a solution that allowed them to conveniently access the media they want, while still providing the content creators with compensation for their work.

Since I didn’t want to be seen as advocating a course of action that could get people into trouble, I explained the situation to my editors and requested that the articles be removed. Instead, I thought it would be better to look at the situation as a whole and try and shine a bit of light on what Professor Marketa Trimble, an Associate Professor of Law at the University of Nevada Las Vegas, termed “cybertravel.” Because no matter what your opinions are on the morality of VPN usage, one thing we can agree on is that the legal aspects can be very confusing.

Before we go any further, I do need to stress something: I am not a lawyer. What I’m presenting here is just conveying some very basic information I’ve discovered to show that this situation is incredibly confusing and complex. If you use a VPN to access content not available in Japan, you do so at your own risk. If you want more information, I suggest you consult a legal expert.

To begin with, yes, you can use a VPN, which will conceal your true location, in order to access content from services such as Hulu, Netflix, BBC, etc. The user agreements for these services do say that you are agreeing to access this content from only within the country in which the service is based. If you are discovered violating this agreement, they say that you may be liable for penalties. What those penalties are is very vague.

In her paper, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, Professor Trimble writes, “So far there appear to be no cases raising the question of the legality of cybertravel, whether in the context of copyright law or of other laws pertaining to conduct on the Internet.” However, the ninety-page paper posits a number of different instances in which there could be potential liability, all depending on different circumstances. If you’re interested in reading the entire document, it can be found online at the Social Science Research Network (http://ssrn.com/abstract=1937960).

There was a recent public example of VPN usage in America. During the London Olympics, NBC received a lot of criticism for their coverage of the events, and many turned to VPN or other such methods in order to watch on the BBC or CTV. Speaking to the Los Angeles Times, Mitch Stoltz, a staff attorney for the Electronic Frontier Foundation, said it was possible for the BBC to sue for these breaches of agreements, but unlikely due to the potential for negative press. As far as copyright laws, Stoltz said he didn’t think any were being violated by doing this. Instead, Stoltz said a lawsuit against a VPN provider would be more likely than a suit against an individual. Professor Trimble’s paper also states that cybertravel providers (such as the sites that provide you with VPN access) were the more likely targets, because going after individuals can be highly inefficient and the costs of detection and enforcement are excessive in comparison to the benefits.

What seems to be a major problem is the laws have not yet caught up with the technology. The current system of territorial licensing may not be as viable as it once was, and instead media companies may look to how they can utilize the Internet to effectively distribute content across the globe so anyone who wants it can buy it legally, without resorting to methods of ambiguous or no legality.

So in conclusion, if you do decide to use a VPN to acquire foreign media, keep in mind that it is your responsibility to weigh the risk vs. reward. Hopefully one day, a better system for distributing media across multiple markets will emerge.

Author of this article

Percival Constantine

Several years ago, Percival Constantine traded the frigid winters and skyscrapers
of Chicago for the typhoon seasons and volcanic eruptions of Kagoshima.
He is the Pulp Ark Award-nominated author of several books in the New Pulp
movement, including The Myth Hunter and Love & Bullets, as well as an editor
and English teacher. More information about his work can be found at his website,
percivalconstantine.wordpress.com. Also be sure to follow him on Facebook
(facebook.com/percivalconstantine) and Twitter (@perconstantine).

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