Is Aussie access to US cable TV services illegal?

FBIas Anti-Piracy Warning SealWith the Government contemplating clamping down on illegal downloads, some people I met the other day were explaining their ‘legal’ way around getting access to content. instead of downloading it they had bought a user-ID from a guy in the United States which, when they had spoofed they geo-location, allowed them unlimited access to cable TV channels via an iPad app. The conversation turned to the legality of this, the morality being a different issue entirely. So I did some digging to see if, as was contended, this was actually legal.

Let’s start with a step back. Downloading a copy of Game of Thrones is clearly illegal. it breaches the copyright owner’s rights not to have unauthorised copies of the work made. You download it, you make a copy, you’re liable if they can be bothered identifying and pursuing you. Of course pursuing tens of thousands of individuals is not fun at all so the copyright owners have tended to go after the major aggregators such as Pirate Bay, or tried to target ISPs such as iiNet. The Government has taken a similar approach and focused its efforts on the ISPs simply because they are an easier and richer target.

But what if you’re not making a copy? The first approach like this I’d heard of was people subscribing to Netflix in the US by using services that spoof their geo-location. Interestingly this doesn’t seem to be illegal from what I can tell. It certainly breaches the terms and conditions you sign up with Netflix under and so they would have a perfect right to terminate the service, but breaching the terms and conditions is not a crime, and there is US case law that doing something like spoofing the geo-location does not make it a crime. The key point in this situation, though, is that you have actually signed up with Netflix – you are paying the provider and have an agreement with them, albeit one you’ve breached from the very beginning.

But there’s more. The problem is that Netflix isn’t all that good and that has led to people finding more creative solutions to access the US cable channels like HBO Go. The basic approach is to find someone who has access to the US channels and is willing to re-sell their account log-on; and there are people making a business out of doing just that. While the pitched idea is that these guys are just re-selling their own account log-ons, the numbers don’t seem to support that. The people I’ve heard of are paying around $10 per month for access to a service that generally costs around $100 a month in the US. That would suggest that the ‘guy’ is either re-selling a  lot of log-ons, well beyond the 5-7 sub-accounts that cable providers seem to allow, or he’s got a completely illegal source. Anyway that’s about the guy, we’re interested in the end-user.

So you find one of these guys in the US, or there are even local Australian-based re-sellers, and you get a log-on from them. You spoof the geo-location and you can watch the cable channels on your Apple TV as if you were in the United States. Clearly the person selling on the log-on is breaching the terms of their agreement with the cable company; he’s violating the terms of service, but that’s not a crime. You don’t have any relationship with the company and you’re not making copies of the shows, so how can you be liable for anything? When you read up on this there are many, many people saying that the end-user is doing nothing illegal; but a bit of digging suggests that’s not quite the case.

The police clearly think that illicit access is illegal:

Ashfield crime manager Enrico Coffen said that anyone with an illegal subscription to pay TV must realise that it is a crime and that people dealing in this trade will be investigated and prosecuted.

Up to a point, the police are right. In Australia  it is an offence under the Copyright Act  to access a ‘subscription broadcast’ without authorisation. The offence covers unauthorised access regardless of context and includes unauthorised access in a private home. A successful prosecution could result in damages and prison. Many countries have similar laws and in Germany a man was recently jailed for 18 months for illegally selling access to a cable channel. But this law only applies to broadcasts made in Australia, so it doesn’t protect the US cable channel in the scenario we’re looking at. (In fact the situation is a bit more complicated than that: If the broadcaster is registered in Australia the law kicks in so your liability could change at any time.)

As far as I can see, you’re not breaking an Australian law by illicitly accessing the US cable network via the Internet. However, the USA, Canada, the UK and most European countries have similar laws to ours. So it would appear that you would be breaking a US law by illegally accessing a cable subscription. And there’s another US law that you might technically be falling foul of: You’ve just hacked into the cable company’s computer by accessing a computer system without authority – and in those terms that’s a criminal act in the United States.

At the end of the day there’s a vanishingly small chance of any of this coming home to roost. In fact, HBO’s CEO has publicly stated that he has no problem with people sharing passwords. While that’s not the same as making a business out of re-selling passwords, it is indicative of the level of interest that the cable channels would have in prosecuting an end-user at the other end of the World.

Note: This article doesn’t purport to be real legal research let alone legal advice. It also isn’t indicative of my claiming any moral high-ground on the subject of illicit access to shows – I’ve written before about the foolishness of companies not recognising the global nature of their market in an Internet-connected World and the inevitability of people getting round restrictions that are purely frustrating.

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