Comment by brownbat | Hacker News Reader

Comment by brownbat | Hacker News Reader

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> You are aware that watching netflix outside of it's service area is piracy, right ?

I'm not so sure.

"Piracy" isn't a well defined legal term, so I'm guessing we're talking about copyright infringement here.

But US copyright primarily extends from US laws, which are hard to break if you're in a foreign jurisdiction.

Treaties like the TRIPS agreement extend copyright (and other IP) rules and enforcement to foreign jurisdictions, but it's not altogether clear that TRIPS would require every jurisdiction to prosecute someone who receives a stream from Netflix through an additional hop. (In fact, it obviously doesn't apply everywhere, as some jurisdictions give complete waivers to copyright infringement for personal use.)

More to the point, with streaming, it's not really clear the user has made any copy that would be required for the violation in most jurisdictions.

I don't know the situation in Italy, but it's at least not a foregone conclusion that using a VPN to watch Hulu or Netflix violates anything aside from a terms of service agreement. An unenforced TOS provision hardly has the same legal heft as copyright infringement (unless the CFAA is thrown at you, but that's a whole different animal...)

"But US copyright primarily extends from US laws, which are hard to break if you're in a foreign jurisdiction."

well. sometimes the US has strange notions of 'foreign jurisdiction'. for example if a US citizen were to order a drink at a bar overseas and that drink happens to contain rum from cuba. you've just violated US law. that will be $250,000 and 10 years in prison. [1]

see this bit from treasury.gov:

"Transactions Involving Cuban-Origin Goods in Third Countries

The question is often asked whether United States citizens or permanent resident aliens of the United States may legally purchase Cuban origin goods, including tobacco and alcohol products, in a third country for personal use outside the United States. The answer is no. The Regulations prohibit persons subject to the jurisdiction of the United States from purchasing, transporting, importing, or otherwise dealing in or engaging in any transactions with respect to any merchandise outside the United States if such merchandise (1) is of Cuban origin; or (2) is or has been located in or transported from or through Cuba; or (3) is made or derived in whole or in part of any article which is the growth, produce or manufacture of Cuba. Thus, in the case of cigars, the prohibition extends to cigars manufactured in Cuba and sold in a third country and to cigars manufactured in a third country from tobacco grown in Cuba."

[1] http://www.treasury.gov/resource-center/sanctions/Documents/...

UPDATE:

London Film Productions Ltd. v. Intercontinental Communications, Inc. found jurisdiction for a US district court in a case with a British plaintiff, a US defendant, where the infringement took place in several Latin American jurisdictions.

However, the court only took the case because it was found there would be an enormous hardship to force the plaintiff to pursue relief in several foreign jurisdictions. And note, the US federal court still applied the laws of those countries, because the legal jurisdiction remains the place where the alleged infringement takes place.

Also note, "The Second Circuit has seemingly disavowed London Films Productions’ approach, rejecting plaintiff’s reliance on that opinion in Murray v. BBC, 82 F.3d 287, 293 (2d Cir. 1986). with the dismissive remark: “We are, quite frankly, at a loss to see how this lawsuit has any but the most attenuated American connection,” a comment that applies even more strongly to London Films."

Further critical analysis of London Films here: http://williampatry.blogspot.com/2006/05/copyright-is-not-tr...

Even if this argument holds water (and as a US citizen you're bound by US law whether or not you're in the US), you still agreed to a contract that you wouldn't do this.

Now given that contract you agreed to with netflix, I think is pretty safe to say that you're violating the law in every last jurisdiction on earth.

Sure they won't sue you for it, generally speaking. But you're definitely violating the law.

'Bound by US law in any jurisdiction' is too hasty a generalization.

Some laws, tax laws, apply regardless of jurisdiction, because jurisdiction is found by some connection of yourself to the state. But if you commit murder in Canada, that's a violation of Canadian, not US law (unless you're a member of the US armed forces, in which case it's a violation of the Uniform Code of Military Justice).

But more importantly, it's not illegal to break a contract.

You can't even get punitive damages for a breach. One example illustrating this is US Naval Institute v. Charter Communications, 936 F. 2d 692 - Court of Appeals, 2nd Circuit 1991.

Judge Posner explains why the law favors this in "Economic Analysis and the Law" as follows:

"Suppose I sign a contract to deliver 100,000 custom-ground widgets at $.10 apiece to A, for use in his boiler factory. After I have delivered 10,000, B comes to me, explains that he desperately needs 25,000 custom-ground widgets at once since otherwise he will be forced to close his pianola factory at great cost, and offers me $.15 apiece for 25,000 widgets. I sell him the widgets and as a result do not complete timely delivery to A, who sustains $1000 in damages from my breach. Having obtained an additional profit of $1250 on the sale to B, I am better off even after reimbursing A for his loss. Society is also better off. Since B was willing to pay me $.15 per widget, it must mean that each widget was worth at least $.15 to him. But it was worth only $.14 to A – $.10, what he paid, plus $.04 ($1000 divided by 25,000), his expected profit. Thus the breach resulted in a transfer of the 25,000 widgets from a lower valued to a higher valued use."

In order for any action to justify damages (under public law), one must indicate to the satisfaction of the judge :

1) that action was illegal (violated law, contract provisions, ...)

2) that damages were incurred

3) that there was a causal connection between the action and the damages

It is pretty obvious what happens in most situations. For example if you damage someone without violating the law, you cannot be punished for that (well, not legally).

It is also pretty obvious that if you violate a contract, but it has no consequences for anyone, you can't be punished for this (this is a major difference between our -mostly- canon law and judaic or sharia law, where the state/everyone is responsible to punish you even if no one was bothered by your actions (the state in judaic law, everyone in sharia law, although muslim states are in the process of changing this, because despite allah's "wisdom" the part of sharia where everybody should attack everyone they believe to have broken the law turns out to be massively counterproductive and destructive. There are many such changes, the one I like to remind muslim nutcases of is that sharia specifies the death penalty to any muslim not living under an islamic state (something they thoroughly implemented during the crusades for example), and there's plenty of fatwas of this)

What the judge illustrated is that he judged that condition 2 was not satisfied in this case. There are lots of qualifications though. First, anyone who was damaged was reimbursed (A), not just for the price he would have paid, but on top of that for the resulting damages. I doubt you'd want to use this very often, as it does mean paying damages. Also : this is a very "American" judgement, and on the extreme side even for America. I would expect this not to work on most judges.

Well sure, except that won't apply here since there is ample precedent of courts finding copyright breaches do damage the copyright holder.

It's not actually a contract you have with Netflix - just a terms of service and those aren't legally binding. The worst Netflix themselves could do is terminate your account.

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